1 Thursday, 29 July 2004

2 [Appeal Judgement]

3 [Open session]

4 [The appellant entered court]

5 --- Upon commencing at 9.04 a.m.

6 JUDGE POCAR: Madam Registrar, would you please call the case.

7 THE REGISTRAR: Case Number IT-95-14-A, The Prosecutor versus

8 Tihomir Blaskic.

9 JUDGE POCAR: Thank you.

10 Mr. Blaskic, can you hear me in a language you understand?

11 THE APPELLANT: [Interpretation] Good morning, Mr. President. Yes,

12 I can hear you and understand you.

13 JUDGE POCAR: Thank you. Could I have the appearances for the

14 Prosecution, please.

15 MR. FARRELL: Good morning, Your Honours. Appearing for the

16 Prosecution is Norman Farrell, Ms. Marie-Ursula Kind, Ms. Michelle Jarvis,

17 and Ms. Susan Grogan. Thank you.

18 JUDGE POCAR: Thank you. May I have the appearances for the

19 appellant.

20 MR. HAYMAN: Good morning, Your Honours, Mr. President.

21 Russell Hayman and Anto Nobilo appearing on behalf of appellant.

22 JUDGE POCAR: Thank you.

23 The Appeals Chamber is here today to deliver this judgement on

24 appeal in the case of the Prosecutor against Tihomir Blaskic. The trial

25 in this case commenced on 24 June 1997, and Trial Chamber I of this

1 Tribunal delivered its judgement on the 3rd of March 2000. The Appellant

2 Tihomir Blaskic appealled on 17 March 2000.

3 This case relates to crimes that were perpetrated during the

4 conflict between the Croatian Defence council and the Bosnian Muslim Army

5 in the Lasva Valley region of Central Bosnia from May 1992 until January

6 1994. The appellant, Tihomir Blaskic, was the commander of the HVO Armed

7 Forces in Central Bosnia at the time the crimes at issue were committed.

8 The Trial Chamber convicted the appellant on the basis of 19

9 counts set forth in the second amended indictment for crimes that occurred

10 in the Vitez, Busovaca, and Kiseljak municipalities. These counts

11 encompassed violations of Article 2, 3, and 5 of the Statute of the

12 International Tribunal. The appellant was convicted on the basis of

13 Article 7(1) of the Statute for ordering the crimes. The Trial Chamber

14 also stated in the disposition of the judgement that "in any event, as a

15 commander, he failed to take the necessary and reasonable measures which

16 would have allowed these crimes to be prevented or the perpetrators

17 thereof to be punished." Therefore, the Trial Chamber also convicted the

18 appellant under Article 7(3) of the Statute. The Trial Chamber imposed a

19 single sentence of 45 years' imprisonment.

20 Following the practice of the Tribunal, I will not read out the

21 text of the appeal judgement except for the disposition. Before doing

22 that, I will first summarise the issues on appeal and the reasoning and

23 findings of the Appeals Chamber so that you, Tihomir Blaskic, together

24 with the public, will know the reasons for the Appeals Chamber's decision.

25 I emphasise, however, that this is only a summary and that it does not in

1 any way form a part of the judgement of the Appeals Chamber. The only

2 authoritative account of the findings of the Appeals Chamber is in the

3 written judgement which will be available today at the end of these

4 proceedings.

5 Because of the complexity of the appeal, the summary of the

6 judgement which I will now read is longer than our customary practice.

7 This appeal has been characterised by the filing of an enormous

8 amount of additional evidence. This was due inter alia to the lack of

9 cooperation on the part of the Republic of Croatia at that time, and to

10 the delay in the opening of the Republic of Croatia's archives, which only

11 occurred following the death of former President Franjo Tudjman on 10

12 December 1999, thus preventing the parties to this case from availing

13 themselves of these materials at the trial. During the appeal

14 proceedings, the appellant filed four motions pursuant to Rule 115 of the

15 Rules of the International Tribunal. In these motions, he sought to admit

16 over 8.000 pages of material as additional evidence. The first of these

17 additional evidence motions were was filed in January 2001 and the last in

18 May 2003.

19 Following the filing of the fourth and final motion by the

20 appellant, and the rebuttal material by the Prosecution in relation to

21 these motions, the Appeals Chamber rendered its decisions on additional

22 evidence in October 2003. It found that in the circumstances of this

23 case, a retrial was not warranted. It decided to admit a total of 108

24 items, and as a consequence, several witnesses were heard in the

25 evidentiary portion of the hearing on appeal which took place from 8 to 11

1 December 2003 and was followed by final arguments on 16, 17 December 2003.

2 The Appeals Chamber has duly considered the evidence before it,

3 including evidence on the trial record, additional evidence submitted by

4 the appellant, and rebuttal material presented by the Prosecution.

5 The appellant Blaskic has brought several grounds of appeal in

6 this case. In relation to the applicable law, he alleges errors of law

7 concerning Articles 2, 5, and 7 of the Statute. He also alleged a denial

8 of due process of law by virtue of the second amended indictment and

9 Rule 68 violations. In relation to the factual findings of the

10 Trial Chamber, he alleges errors concerning his responsibility for crimes

11 committed in Ahmici, parts of the Vitez Municipality other than Ahmici,

12 the Busovaca Municipality, and the Kiseljak Municipality. He also alleges

13 factual errors concerning his responsibility for detention-related crimes.

14 The appellant also appeals against his sentence.

15 The Appeals Chamber may consider appeals on grounds of an error of

16 law invalidating the decision of the Trial Chamber, or an error of fact

17 occasioning a miscarriage of justice. In this case, the Appeals Chamber

18 has had cause to consider the standard of review on appeal in relation to

19 findings challenged only by the Defence in the absence of a Prosecution

20 appeal. If the Appeals Chamber finds that an alleged error of law arises

21 from the application of a wrong legal standard by a Trial Chamber, it is

22 open to the Appeals Chamber to articulate the correct legal standard and

23 to review the relevant findings of the Trial Chamber accordingly. In

24 doing so, the Appeals Chamber not only corrects a legal error but applies

25 the correct legal standard to the evidence contained in the trial record

1 in the absence of additional evidence and must determine whether it is

2 itself convinced beyond reasonable doubt as to the factual finding

3 challenged by the Defence before that finding is confirmed on appeal.

4 As to error of facts, the standard applied by the Appeals Chamber

5 has been that of reasonableness; namely, whether the conclusion of guilt

6 beyond reasonable doubt is one which no reasonable trier of fact could

7 have reached.

8 The Appeals Chamber bears in mind that in determining whether or

9 not a Trial Chamber's finding was reasonable, it will not likely disturb

10 findings of fact by a Trial Chamber. The Appeals Chamber concurs with the

11 Kupreskic appeals judgement finding that "Where the Appeals Chamber is

12 satisfied that the Trial Chamber returned a conviction on the basis of

13 evidence that could not have been accepted by any reasonable Tribunal or

14 where the evaluation of the evidence was wholly erroneous, it will

15 overturn the conviction since under such circumstances no reasonable

16 Tribunal of fact could be satisfied beyond reasonable doubt that the

17 accused had participated in the criminal conduct."

18 The Appeals Chamber considers that there are no reasons to depart

19 from the standards set out above. In relation to grounds of appeal

20 alleging pure error of fact and when no additional evidence has been

21 admitted on appeal, that standard shall be applied where appropriate in

22 the present judgement. When factual errors are alleged on the basis of

23 additional evidence proffered during the appellate proceedings, Rule 117

24 of the Rules of the Tribunal provide that the Appeals Chamber shall

25 pronounce judgement "on the basis of the record on appeal together with

1 such additional evidence as has been presented to it." In Kupreskic, the

2 Appeals Chamber established the standard of review when additional

3 evidence has been admitted on appeal and held the following: "The test to

4 be applied by the Appeals Chamber in deciding whether or not to uphold the

5 conviction where additional evidence has been admitted before the Chamber

6 is has the appellant established that no reasonable Tribunal of fact could

7 have reached a conclusion of guilt based upon the evidence before the

8 Trial Chamber together with the additional evidence admitted during the

9 appellate proceeding."

10 The standard of review employed by the Appeals Chamber in that

11 context was whether a reasonable trier of fact could have been satisfied

12 beyond a reasonable doubt as to the finding in question, a deferential

13 standard. In that situation, the Appeals Chamber in Kupreskic did not

14 determine whether it was satisfied itself beyond reasonable doubt as to

15 the conclusion reached, and indeed, it did not need to do so because the

16 outcome in that situation was that no reasonable trier of fact could have

17 reached a finding of guilt.

18 However, if in a given case the outcome were that a reasonable

19 trier of fact could reach a conclusion of guilt beyond a reasonable doubt,

20 the Appeals Chamber considers that when the Appeals Chamber is itself

21 seized of the task of evaluating trial evidence and additional evidence

22 together and in some instances in light of a newly articulated legal

23 standard, it should in the interests of justice be convinced itself beyond

24 reasonable doubt as to the guilt of the accused before confirming a

25 conviction on appeal.

1 The Appeals Chamber underscores that in such cases if it were to

2 apply a lower standard then the outcome would be that neither in the first

3 instance nor on appeal would a conclusion of guilt based on the totality

4 of evidence relied upon in the case assessed in light of the correct legal

5 standard be reached by either Chamber beyond a reasonable doubt.

6 In sum, when the Appeals Chamber is confronted with a narrowing of

7 the legal standard applied in relation to the factual finding and an

8 alleged error of law and additional evidence has been admitted on appeal,

9 there are two steps involved: First, the Appeals Chamber will apply the

10 correct legal standard to the evidence contained in the trial record and

11 will determine whether it is itself convinced beyond reasonable doubt as

12 to the finding of guilt on the basis of the trial record. If it is not

13 convinced, then no further examination of the matter is necessary as a

14 matter of law. If, however, the Appeals Chamber applying the correct

15 legal standard to the evidence contained in the trial record is itself

16 convinced beyond reasonable doubt as to the finding of guilt, it will then

17 proceed to determine whether in light of the trial evidence assessed

18 together with the additional evidence admitted on appeal it is itself

19 still convinced beyond reasonable doubt as to the finding of guilt.

20 This standard of review supplements the standard of review

21 employed by the Appeals Chamber in the Kupreskic case.

22 I will now set out in some detail the Appeals Chamber's findings

23 in respect of each ground of appeal.

24 The first ground of appeal concerned alleged errors of law

25 concerning Article 7 of the Statute. First, as to Article 7(1), the

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1 appellant challenges the standards set forth in the trial judgement

2 concerning the form of criminal participation in Article 7(1) of the

3 Statute.

4 The appellant was not convicted for planning or instigating

5 crimes. The issue before the Appeals Chamber is whether a standard of

6 mens rea that is lower than direct intent may apply in relation to

7 ordering under Article 7(1) of the Statute.

8 In the present case, the Trial Chamber in paragraph 474 of the

9 trial judgement articulated the following standard, and I quote:

10 "Any person who ordering an act knows that there is a risk of

11 crimes being committed and accepts that risk, shows the degree of

12 intention necessary (recklessness, but dol eventuel in the original French

13 text) so as to incur responsibility for having ordered, planned, or

14 incited the commitment of the crimes."

15 Although the Trial Chamber indicated that this standard in

16 paragraph 474 had already been explained earlier in the trial judgement,

17 an examination of previous paragraphs pertaining to the legal elements of

18 Article 7 demonstrates that the Trial Chamber did not actually do so.

19 Other paragraphs in the trial judgement articulated the standard set out

20 in paragraph 474 using different expressions.

21 Having examined the approaches of national systems as well as the

22 International Tribunal precedents, the Appeals Chamber considers that the

23 Trial Chamber's articulations of the mens rea for ordering under

24 Article 7(1) of the Statute are incorrect. The knowledge of any kind of

25 risk, however low, does not suffice for the imposition of criminal

1 responsibility for serious violations of international humanitarian law.

2 The Trial Chamber does not specify what degree of risk must be proven.

3 Indeed, it appears that under the Trial Chamber's standard, any military

4 commander who issues an order would be criminally responsible, because

5 there is always a possibility that violations could occur in the

6 implementation of that order.

7 The Appeals Chamber finds that a person who orders an act or

8 omission with the awareness of the substantial likelihood that a crime

9 will be committed in the execution of that order has the requisite mens

10 rea for establishing liability under Article 7(1) pursuant to ordering.

11 Ordering with such awareness has to be regarded as accepting that crime.

12 The appellant also challenges the Trial Chamber's findings in

13 relation to the actus reus and mens rea requirements for aiding and

14 abetting. In this case, the Trial Chamber correctly followed the standard

15 set out in the Furundzija trial judgement in respect of the actus reus of

16 aiding and abetting.

17 In relation to the mens rea of aider and abettor, the

18 Trial Chamber held that in addition to knowledge that his acts assist in

19 the commission of the crime, the aider and abettor needs to have intended

20 to provide assistance, or as a minimum, accepted that such assistance

21 would be a possible and foreseeable consequence of his conduct. As stated

22 in the Vasiljevic appeal judgement, knowledge on the part of the aider and

23 abettor that his acts assist in the commission of the principal

24 perpetrator's crime suffices for the mens rea requirement of this mode of

25 participation. In this respect, the Trial Chamber erred.

1 The Appeals Chamber therefore finds that the Trial Chamber was

2 correct in part and erred in part in setting out the legal requirements of

3 aiding and abetting. However, the Trial Chamber did not hold the

4 appellant responsible for aiding and abetting the crimes at issue. In

5 addition, the Appeals Chamber considers that this form of participation

6 was insufficiently litigated on appeal and not fairly encompassed by the

7 second amended indictment and the Appeals Chamber, therefore, declines to

8 consider this form of participation any further.

9 As to Article 7(3), the appellant submits that the Trial Chamber

10 erred in its interpretation of the knowledge requirement under that

11 article. In respect of this requirement for commanders, the Trial Chamber

12 "holds that their role obliges them to be constantly informed of the way

13 in which their subordinates carry out the tasks entrusted them, and to

14 take the necessary measures for this purpose."

15 The Appeals Chamber considers that the Celebici appeal judgement

16 has settled this issue and that a superior will be criminally responsible

17 under the principle of superior responsibility only if information was

18 available to him which would have put him on notice of offences committed

19 by subordinates. However, neglect of the duty to acquire such knowledge

20 is not a separate offence under 7(3). A superior will not, therefore, be

21 liable for such failures, not only for failing to take necessary and

22 reasonable measures to prevent or to punish. The trial judgement's

23 interpretation of the standard is not consistent with the jurisprudence of

24 the Appeals Chamber in this regard and is corrected accordingly.

25 The appellant was charged in the indictment under both

1 Article 7(1) and Article 7(3) of the Statute. From the conclusions drawn

2 by the Trial Chamber in relation to certain events and in view of the

3 disposition, it is clear that the Trial Chamber considered the merits of

4 the case both in terms of Article 7(1) and Article 7(3) in relation to

5 those events.

6 But the Appeals Chamber has to express concern at the disposition

7 of the trial judgement wherein the Trial Chamber, having found the

8 appellant guilty for ordering persecutions and for having committed other

9 offences on the basis of the same factual findings, further finds than in

10 any event, as a commander, he failed to take the necessary and reasonable

11 measures which would have prevented these crimes or led to the

12 perpetrators thereof to being punished. This statement which refers to

13 Article 7(3) responsibility reveals a case of concurrent conviction

14 pursuant to Article 7(1) and Article 7(3) of the Statute in contradiction

15 with the correct view expressed in paragraph 337 of the trial judgement

16 which reads:

17 "It would be illogical to hold a commander criminally responsible

18 for planning, instigating or ordering the commission of crimes and at the

19 same time reproach him for not preventing or punishing them. However, as

20 submitted by the Prosecution, the failure to punish past crimes which

21 entails a commander's responsibility under Article 7(3) may, pursuant to

22 Article 7(1) and subject to the fulfillment of the respective mens rea and

23 actus reus requirements, also be the basis for his liability for either

24 aiding and abetting or instigating the commission of further crimes."

25 The provisions of Article 7(1) and Article 7(3) of the Statute

1 connote distinct categories of criminal responsibility. It is not

2 appropriate to convict under both Article 7(1) and Article 7(3) of the

3 Statute in relation to a particular count. Where both Article 7(1) and

4 Article 7(3) responsibility are alleged under the same count, and where

5 the legal requirements pertaining to both of these heads of responsibility

6 are met, the Trial Chamber should enter a conviction on the basis of

7 Article 7(1) only, and consider the accused's superior position as an

8 aggravating factor in sentencing.

9 The Appeals Chamber therefore considers that the concurrent

10 conviction pursuant to Article 7(1) and Article 7(3) of the Statute in

11 relation to the same counts based on the same facts, as reflected in the

12 disposition of the trial judgement, constitutes a legal error invalidating

13 the trial judgement in this regard. Furthermore, where the Trial Chamber

14 did not make any factual findings on the basis of Article 7(3) of the

15 Statute, the Appeals Chamber has not considered this mode of

16 responsibility, notwithstanding the sweeping statement concerning

17 Article 7(3) responsibility contained in the disposition of the trial

18 judgement.

19 The second ground concerns alleged errors of law concerning

20 Article 5 of the Statute.

21 The appellant submits that the Trial Chamber erred in several

22 significant respects in construing and applying the legal requirements of

23 Article 5, crimes against humanity. This ground of appeal has several

24 elements.

25 As to the requirement of a widespread or systematic attack, the

1 Appeals Chamber has considered the Trial Chamber's articulation of this

2 element of crimes against humanity and concludes that the Trial Chamber

3 was correct in its analysis of this element.

4 As to the requirement that the attack be directed against a

5 civilian population, the relevant requirement was set out in the Kunarac

6 appeal judgement: Both the status of the victim as a civilian and the

7 scale on which the attack is committed or the level of organisation

8 involved characterise a crime against humanity.

9 In determining the scope of the term "civilian population," the

10 Appeals Chamber considers that the presence within a population of members

11 of resistance groups, or former combatants who have laid down their arms,

12 does not alter its civilian characteristic. The Trial Chamber was correct

13 in this regard. However, the Trial Chamber erred in part in its

14 characterisation of the civilian population and of civilians under

15 Article 5 when it stated that the specific situation of the victim at the

16 time the crimes were committed must be taken into account in determining

17 his standing as a civilian. The victim's specific situation at the time

18 the crimes are committed may not determine his civilian or non-civilian

19 status. If he is indeed a member of an armed organisation, the fact that

20 he is not armed or in combat at the time of the commission of crimes does

21 not accord him civilian status.

22 As to the requirement that the acts of the accused and the attack

23 itself must have been committed in pursuance of a pre-existing policy or

24 plan, the Appeals Chamber reiterates what was stated in Kunarac, that a

25 plan or policy is not a legal element of a crime against humanity, though

1 it may be evidentially relevant in proving that an attack was directed

2 against a civilian population and that was widespread or systematic. The

3 Trial Chamber was not clear on this point of law.

4 As to the requirement that the accused has knowledge that his acts

5 formed part of the broader criminal attack, the Appeals Chamber considers

6 that the mens rea of crimes against humanity is satisfied when the accused

7 has the requisite intent to commit the underlying offences with which he's

8 charged, and when he knows that there is an attack on the civilian

9 population, and also knows that his acts comprise part of that attack. As

10 set out in the appeals judgement, the Appeals Chamber finds that the

11 Trial Chamber erred in part in its articulation of the mens rea applicable

12 to crimes against humanity.

13 As to the actus reus element of persecutions as a crime against

14 humanity, the Appeals Chamber considers that persecutions as a crime

15 against humanity has already been defined in the case law of the

16 International Tribunal. The trial judgement, however, sets forth a

17 definition of persecutions that characterises the actus reus as

18 encompassing infringements upon fundamental human rights. This analysis

19 constituted a failure to assess whether the underlying acts amount to

20 persecutions as a crime against humanity in international customary law.

21 The Trial Chamber erred in this regard.

22 As set out in the appeals judgement, the Appeals Chamber

23 considered each of the types of conduct considered by the Trial Chamber.

24 They were: Killing (or murder) and causing serious injury; destruction

25 and plunder of property; deportation; forcible transfer, and forcible

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1 displacement; inhumane treatment of civilian; and attacks on cities,

2 towns, and villages.

3 In conclusion, the Appeals Chamber considers that it is evident

4 from the Trial Chamber's analysis of the applicable on persecutions that

5 it did not consider the requirement that acts of persecutions must be of

6 an equal gravity or severity as the other acts enumerated under Article 5

7 of the Statute. The Appeals Chamber notes that it is not enough that the

8 underlying acts be perpetrated with discriminatory intent and the

9 Trial Chamber erred in this regard.

10 As to the mens rea element of persecutions as a crime against

11 humanity, the Appeals Chamber stresses that there is no requirement in law

12 that the actor possess a "persecutory intent" over and above a

13 discriminatory intent for persecution. The Appeals Chamber also

14 emphasises that the mens rea of the perpetrator carrying out acts of

15 persecutions requires evidence of a specific intent to discriminate on

16 political, racial, or religious grounds. The Trial Chamber was correct

17 when it held that the mens rea for persecutions "is the specific intent to

18 cause injury to a human being because he belongs to a particular community

19 or group."

20 Second, the Appeals Chamber is aware that in making its factual

21 findings relating to the ordering of crimes under Article 7(1) of the

22 Statute, the Trial Chamber frequently employed language such as "took the

23 risk" or "deliberately ran the risk." The Appeals Chamber has articulated

24 above, as I mentioned, the mens rea applicable to ordering a crime in the

25 absence of direct intent. Thus, an individual who orders an act with the

1 awareness of a substantial likelihood that persecutions as a crime against

2 humanity will be committed in the execution of the order may be liable

3 under Article 7(1) for the crime of persecutions. Ordering with such

4 awareness has to be regarded as accepting the crime.

5 The next ground concerns alleged errors of law in application of

6 Article 2 of Statute. The offences covered by Article 2 of the Statute

7 must be committed against persons or property protected under the

8 provisions of the Geneva Conventions. Article 4(1) of Geneva Convention

9 IV defines protected persons as "those who, at a given moment and in any

10 manner whatsoever, find themselves, in case of a conflict or occupation,

11 in the hands of a party to the conflict or occupying power of which they

12 are not nationals." The Tadic Appeals Chamber concluded that this

13 provision is directed to the protection of civilians to the maximum extent

14 possible, and that even if in the circumstances of that case the

15 perpetrators and the victims were to be regarded as possessing the same

16 nationality, Article 4 would still be applicable.

17 Applying the same principles in the context of the conflict

18 between the Bosnian Croats and the Bosnian Muslims, the Appeals Chamber in

19 Aleksovski reasoned that since the conflict was international by reason of

20 Croatia's participation, it would follow that the Bosnian Muslim victims

21 were in the hands of a party for the conflict, Croatia, of which they were

22 not nationals and that, therefore, Article 4 of Geneva Convention IV was

23 applicable. The Appeals Chamber in Celebici reaffirmed and deliberated

24 upon these principles when considering their implications for Bosnian

25 Serbs held by Bosnian Muslims.

1 The Appeals Chamber finds that there is no merit in the

2 appellant's assertion that under the "allegiance test," Bosnian Croats

3 would not qualify as "protected" vis-a-vis Bosnian Muslim captors. The

4 Appeals Chamber finds there is no merit in the appellant's assertion that

5 the present case can be distinguished from the Tadic and Celebici cases on

6 the basis that the Bosnian Serbs, unlike the Bosnian Croats, were

7 attempting to secede from Bosnia-Herzegovina.

8 Arguments that the victims should be excluded from the status of

9 protected persons according to a strict construction of the language of

10 Article 4 of Geneva Convention IV have already been rejected by the

11 Appeals Chamber. The Appeals Chamber is satisfied, therefore, that the

12 principle of legality has not been violated in this case. The

13 Appeals Chamber sees no error in the Trial Chamber's determination in this

14 respect.

15 The appellant further submits that the "protected persons"

16 requirement is based upon Article 4(2) of Geneva Convention IV which

17 provides that "nationals of a co-belligerent state, shall not be regarded

18 as protected persons while the state of which they are nationals has

19 normal diplomatic representation in the state in whose hands they are."

20 The Appeals Chamber considers that it is evident, both from the

21 text of Article 4(2) of Geneva Convention IV and the accompanying

22 commentary, that for Article 4(2) to be relevant it must be demonstrated

23 first that the states were allies, and second, that they enjoyed effective

24 and satisfactory diplomatic representation with each other. The states of

25 Croatia and Bosnia-Herzegovina were engaged in a conflict against each

1 other. This, in itself, establishes that they were not co-belligerents

2 within the meaning of Article 4(2). This ground of appeal therefore

3 fails.

4 The fourth ground concerns alleged errors concerning denial of due

5 process of law.

6 The appellant claims that he was unfairly denied his right to a

7 fair trial under Article 21 of the Statute of the International Tribunal

8 in two principal ways: (i), he was tried and convicted on the basis of a

9 fatally vague indictment; and (ii) the Prosecution failed to meet its

10 disclosure obligations with respect to exculpatory evidence under

11 Article 68 of the Rules. The appellant contends that this deprived him of

12 the due process of law, and materially prejudiced his ability to prepare

13 and present his Defence.

14 First, on the vagueness of the indictment. On 21st November 1996,

15 the first indictment was amended to charge the appellant with 19 counts.

16 In April 1997, the Trial Chamber granted the appellant's motion objecting

17 to the amended indictment and ordered the Prosecution to further amend the

18 indictment. The Prosecution filed a second amended indictment in April

19 1997. The appellant again challenged the second amended indictment, and

20 the Trial Chamber issued a decision in June 1997 whereby it ruled that the

21 second amended indictment was defective; however, it decided to begin the

22 trial without instructing the Prosecution to amend the second amended

23 indictment.

24 Having raised the issue twice before the Trial Chamber and having

25 received from the Trial Chamber a specific assurance that the Trial

1 Chamber would not fail to draw all the legal consequences at trial of the

2 possible total or partial failure to satisfy the obligations incumbent

3 upon the Prosecution, insofar as that failure inter alia might not have

4 permitted the accused to prepare his Defence, the Appeals Chamber

5 considers that the appellant was entitled to assume that the Trial Chamber

6 would adhere to its prior commitment and concludes that the appellant has

7 not waived his right to raise the issue of the vagueness of the indictment

8 on appeal.

9 Having analysed the second amended indictment in accordance with

10 the principles of pleading set out in this judgement, the Appeals Chamber

11 finds that the second amended indictment failed to plead the material

12 facts with sufficient particularity, and concludes that the second amended

13 indictment does not comply with the principles of pleading set out in the

14 present judgement.

15 The Appeals Chamber's review of the trial record, however,

16 suggests that the Prosecution did clearly present the necessary

17 information to put the appellant on notice of the nature of its case

18 against him during the trial. The Appeals Chamber concludes that defects

19 in the second amended indictment did not hamper the appellant's ability to

20 prepare his Defence and thus render his trial unfair. As a result, the

21 Appeals Chamber dismisses this aspect of the ground of appeal.

22 As to the violations of Rule 68 of the Rules, the appellant

23 alleges that the Prosecution violated Rule 68 of the Rules by failing to

24 disclose some exhibits, in particular, Exhibits 2, 16, and 25 to the

25 second Rule 115 motion, and Exhibit H1.

1 The Appeals Chamber concludes as to Exhibit 2, the Prosecution did

2 not violate Rule 68. With respect to Exhibits 16 and 25, the

3 Appeals Chamber concludes that the appellant has not suffered material

4 prejudice. With respect to Exhibit H1, the Appeals Chamber considers the

5 Prosecution's failure to disclose this exhibit constitutes a breach of its

6 obligations under Rule 68. However, in light of the fact that the

7 appellant was able to call Witness Watkins to testify during the appeal,

8 the Appeals Chamber concludes that the prejudice caused to the appellant

9 has been remedied.

10 Consequently, even though the Appeals Chamber considers that the

11 Prosecution did violate Rule 68, in light of the absence of material

12 prejudice to the appellant in this case, dismisses this aspect of the

13 appeal.

14 We now come to alleged errors concerning the appellant's

15 responsibility for crimes committed in the Ahmici area.

16 First, the appellant's responsibility under Article 7(1).

17 The Trial Chamber convicted the appellant pursuant to Article 7(1)

18 for crimes that targeted the Muslim civilian population and were

19 perpetrated as a result of his ordering the Viteska Brigade, the Nikola

20 Subic Zrinski Brigade, the 4th Military Police Battalion, the Dzokeri

21 (Jokers), the Vitezovi, and the Domobrani to offensively attack Ahmici and

22 neighbouring villages. The Appeals Chamber considers that the appellant's

23 conviction under Article 7(1) is based upon the following findings reached

24 by the Trial Chamber: (i) that the attack was organised, planned at the

25 highest level of the military hierarchy and targeted the Muslim civilian

1 population in Ahmici; (ii) that the military police, the Jokers, the

2 Domobrani, and the regular HVO (including the Viteska Brigade) took part

3 in the fighting and no military objective justified the attacks; and (iii)

4 that the appellant had command authority over the Viteska Brigade, the

5 Domobrani, the 4th Military Police Battalion, and the Jokers during the

6 period in question.

7 In support of the appellant's conviction pursuant to Article 7(1)

8 of the Statute, the Trial Chamber found that Exhibit D269 was "very

9 clearly" an order to attack, addressed to the Viteska Brigade, the 4th

10 Military Police Battalion, the forces of the Nikola Subic Zrinski Brigade

11 and the forces of the civilian police which the Trial Chamber stated were

12 recognised on the ground as being those which had carried out the attack.

13 The Appeals Chamber considers that the Trial Chamber's assessment

14 of Exhibit D269 as reflected in the trial judgement diverges significantly

15 from that of the Appeals Chamber following its review. The

16 Appeals Chamber considers that the Trial Chamber's assessment was wholly

17 erroneous.

18 The Appeals Chamber considers that the trial evidence does not

19 support the Trial Chamber's conclusion that the ABiH forces were not

20 preparing for combat in the Ahmici area. In addition, the Appeals Chamber

21 notes that additional evidence admitted on appeal shows that there was a

22 Muslim military presence in Ahmici and that the appellant had reason to

23 believe that the ABiH intended to launch an attack along the

24 Ahmici-Santici-Dubravica axis. Consequently, the Appeals Chamber

25 considers that there was a military justification for the appellant to

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1 issue D269.

2 In light of the analysis of the Trial Chamber's interpretation of

3 D269 and on the basis of the relevant evidence before the Trial Chamber,

4 the Appeals Chamber concludes that no reasonable trier of fact could have

5 reached the conclusion that D269 was issued "with the clear intention that

6 the massacre would be committed," or that it gave rise to the crimes

7 committed in Ahmici on 16 April 1993.

8 The Trial Chamber found that in addition to the military police

9 and the Jokers, regular HVO units, in particular, the Viteska Brigade,

10 took part in the fighting in the Ahmici area on 16 April 1993 and

11 concluded that the crimes committed were not the work of the military

12 police alone but were also ascribable to the regular HVO units, in

13 particular, the Viteska Brigade and the Domobrani.

14 The Appeals Chamber considers that the finding that the

15 Viteska Brigade and the Domobrani took part in the commission of crimes

16 during the attack on Ahmici and neighbouring villages, on the basis of the

17 trial record, was a tenuous finding. The Appeals Chamber stresses that

18 the additional evidence admitted on appeal fatally undermines the said

19 finding and suggests that the crimes committed in the Ahmici area on 16

20 April 1993 were perpetrated by the Jokers and the 4th Military Police

21 Battalion. For the foregoing reasons, the Appeals Chamber considers that

22 the Trial Chamber's finding that the crimes committed in Ahmici "were also

23 ascribable to the regular HVO units, in particular, the Viteska Brigade

24 and the Domobrani," cannot be sustained on appeal.

25 The Appeals Chamber considers that some documents admitted as

1 additional evidence on appeal support the assertion that the 4th Military

2 Police Battalion and the Jokers committed the crimes in the Ahmici area on

3 16 April 1993 and identify others as those responsible for planning and

4 ordering the massacre.

5 The Trial Chamber concluded that since the appellant knew that

6 some of the troops engaged in the attack an Ahmici had previously

7 participated in criminal acts against the Muslim population of Bosnia or

8 had criminals within their ranks, when ordering those troops to launch an

9 attack on the village of Ahmici pursuant to D269, the appellant

10 deliberately took the risk that crimes would be committed against the

11 Muslim civilian population in Ahmici and their property.

12 The Appeals Chamber has articulated the mens rea applicable to

13 ordering a crime under Article 7(1) of the Statute in the absence of

14 direct intent. The Trial Chamber did not apply this standard in relation

15 to the appellant's conviction under Article 7(1).

16 The analysis of the evidence relied upon by the Trial Chamber

17 supports the conclusion that concrete measures had been taken to deter the

18 occurrence of criminal activities, and for the removal of criminal

19 elements once they had been identified. The Appeals Chamber considers

20 that the orders and reports relied upon by the Trial Chamber do not

21 constitute sufficient evidence to meet the legal standard articulated by

22 the Appeals Chamber.

23 Therefore, the Appeals Chamber is not satisfied that the relevant

24 trial evidence assessed together with the additional evidence admitted on

25 appeal prove beyond reasonable doubt that the appellant is responsible

1 under Article 7(1) of the Statute for ordering the crimes committed in

2 Ahmici and neighbouring villages on 16 April 1993.

3 As to the appellant's responsibility under Article 7(3), the

4 Appeals Chamber considers that besides finding the appellant guilty under

5 Article 7(1), the Trial Chamber also entered a conviction against the

6 appellant for his superior responsibility under Article 7(3) of the

7 Statute.

8 The Appeals Chamber concludes that on the basis of the relevant

9 evidence before the Trial Chamber, and in particular, the appellant's

10 admission that troops from the military police could be attached to him

11 for ad hoc missions pursuant to specific requests, a reasonable trier of

12 fact could have concluded, as the Trial Chamber did, that the appellant

13 had "command authority" over the military police.

14 The Appeals Chamber determined whether in light of the trial

15 evidence assessed together with the additional evidence admitted on

16 appeal, it is itself convinced beyond reasonable doubt as to whether the

17 appellant had effective control over the military police.

18 The Appeals Chamber considers that evidence admitted on appeal

19 shows that, (a) members of the military police were involved in criminal

20 activities; (b) suggests that the military police enjoyed the protection

21 of, and often acted on orders of others; and (c) bolsters the conclusion

22 that the appellant's authority was not recognised by the members of the

23 military police and that his orders were not carried out. The

24 Appeals Chamber also heard evidence on appeal which reveals that the

25 military police units, including the Jokers, were not de facto commanded

1 by the appellant.

2 The Appeals Chamber finds that the Trial Chamber erred in its

3 interpretation of the mental element "had reason to know." Its analysis

4 of the evidence underlying the Trial Chamber's finding that the appellant

5 knew that crimes had been or were about to be committed, reveals no

6 evidence that the appellant had information which put him on notice that

7 crimes had been committed by his subordinates in the Ahmici area on 16

8 April 1993. Further, the additional evidence admitted on appeal lends

9 support to the appellant's argument that he had no reason to believe that

10 crimes had been committed in light of the military conflict taking place

11 at that time between the HVO and the ABiH.

12 The Appeals Chamber considers that the trial evidence assessed

13 together with the additional evidence admitted on appeal shows that the

14 appellant took the measures that were reasonable within his material

15 ability to denounce the crimes committed, and supports the conclusion that

16 the appellant requested that an investigation into the crimes committed in

17 Ahmici be carried out, that investigation was taken over by the SIS

18 Mostar, that he was not informed of the results of the investigation, and

19 that the names of the perpetrators were not disclosed to him.

20 For the foregoing reasons, and having examined the legal

21 requirements for responsibility under Article 7(3) of the Statute, the

22 Appeals Chamber concludes that the appellant lacked effective control over

23 the military units responsible for the commission of crimes in the Ahmici

24 area on 16 April 1993, in the sense of a material ability to prevent or

25 punish criminal conduct, and therefore, the constituent elements of

1 command responsibility have not been satisfied. The Appeals Chamber is

2 therefore not satisfied that the trial evidence, assessed together with

3 the additional evidence admitted on appeal, proves beyond reasonable doubt

4 that the appellant is responsible under Article 7(3) of the Statute for

5 having failed to prevent the commission of crimes in the Ahmici area on 16

6 April 1993 or to punish the perpetrators.

7 The next ground concerns alleged errors concerning the appellant's

8 responsibility for crimes committed in other parts of the Vitez

9 Municipality. The main argument of the appellant is that the Trial

10 Chamber erred by attributing crimes associated with military action in the

11 Vitez Municipality to the appellant as a superior officer of the HVO in

12 the area. On the other hand, the appellant never disputes that he had de

13 jure authority to command the regular HVO troops in Central Bosnia

14 generally, or that he ordered certain military action in the Vitez

15 Municipality in 1993.

16 A finding that the appellant is guilty for ordering certain

17 crimes, for failing to prevent the crimes or to punish the perpetrators

18 after the commission of the crimes, cannot stand on the sole ground that

19 he was the de jure commander of the perpetrators, as the Trial Chamber

20 found. Second, the Appeals Chamber considers that in the context of this

21 armed conflict which had been in the making for some time, involving both

22 sides, the issue as to which side initiated the conflict is irrelevant for

23 the purposes of determining the nature of its actions during the conflict.

24 What concerns the International Tribunal is whether crimes were committed

25 during the conflict and by whom.

1 Coming to the appellant's responsibility under Article 7(1) of the

2 Statute, in respect of the attacks on the town of Vitez on 16 April 1993,

3 the Appeals Chamber accepts that a reasonable trier of fact could have

4 reached the finding that the Trial Chamber -- of the Trial Chamber that

5 the attack against units of the ABiH Army who were present in the town of

6 Vitez was unlawful.

7 However, in the light of additional evidence, the Appeals Chamber

8 does not consider it to be proved beyond reasonable doubt that the attack

9 was directed at a civilian target or that the attack targeted the civilian

10 population of the town of Vitez, and it considers that the Trial Chamber's

11 finding regarding civilian casualty figures in connection with the 16

12 April 1993 attack cannot be relied on in determining the nature of that

13 attack.

14 Furthermore, no reasonable trier of fact could have found, on the

15 basis of the trial evidence, that the appellant knew of the risk that

16 crimes might be committed during the attack. A fortiori, the trial

17 evidence cannot satisfy beyond reasonable doubt the correct standard

18 pronounced by the Appeals Chamber in this judgement.

19 As to the lorry bombing of 18 April 1993, the Appeals Chamber

20 accepts the finding of the Trial Chamber that the bombing of the lorry was

21 a terrorist operation and a crime against humanity. However, no evidence

22 was cited by the Trial Chamber that the appellant ordered the bombing.

23 The Appeals Chamber has carefully considered trial and additional evidence

24 and rebuttal material relevant to this argument and is satisfied beyond

25 reasonable doubt that the explosion was caused by explosives. This part

1 of the finding of the Trial Chamber stands. However, the Appeals Chamber

2 considers that the trial and additional evidence does not satisfy it

3 beyond reasonable doubt that the explosives used could not be secured

4 without the authorisation of the appellant.

5 As to the 18 July 1993 attack on Stari Vitez, the Appeals Chamber

6 considers that the appellant has not shown that no reasonable trier of

7 fact could have reached the conclusion of the Trial Chamber that the

8 appellant ordered the attack on Stari Vitez on 18 July 1993. However, the

9 nature of the attack of 18 July 1993 cannot be categorically defined as

10 that of a criminal act, in that there was still the presence of a

11 considerable number of ABiH soldiers in Stari Vitez at that time.

12 On the basis of the trial and additional evidence, the

13 Appeals Chamber is not satisfied beyond reasonable doubt either that the

14 attack of 18 July 1993 resulted in heavy casualties among Muslim civilians

15 as a result of the "baby bombs", or that the attack was directed at the

16 Muslim civilian population or civilian property in Stari Vitez.

17 The Appeals Chamber concludes that the trial and additional

18 evidence does not prove beyond reasonable doubt that the appellant ordered

19 the attack with the awareness of a substantial likelihood that "baby

20 bombs" would be used against the Muslim civilian population or their

21 property during the attack. The finding that the appellant ordered the

22 attack as a crime against humanity is therefore reversed.

23 As to the crimes committed in April and September 1993 in the

24 villages of Donja Veceriska, Gacice, and Grbavica, the Trial Chamber found

25 that the villages attacked could have represented a military interest such

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1 as to justify their being the target of an attack and that the

2 Trial Chamber also found the appellant guilty of crimes, including

3 destruction, pillage, and forcible transfer of civilians, because he

4 ordered the attacks which "he could only reasonably have anticipated would

5 lead to crimes." The Appeals Chamber has now applied the correct standard

6 in this regard and considers that the trial evidence does not prove beyond

7 reasonable doubt that the appellant ordered the attacks on the villages

8 with the awareness of a substantial likelihood that crimes would be

9 committed during the attack.

10 The appellant's conviction under Article 7(1) of the Statute for

11 the crimes committed in the three villages are all reversed.

12 Coming to the appellant's responsibility under Article 7(3) of the

13 Statute, in relation to the attack of 16 April 1993, and to the lorry

14 bombing of 18 April 1993, the Appeals Chamber considers that there was no

15 finding in the trial judgement and there is no evidence to show that the

16 appellant knew or had reason to know before the attack that crimes were

17 about to be committed by the units under his command. The issue of

18 prevention of crimes does not therefore arise from these two events.

19 In respect of the attack on Stari Vitez of 18 July 1993 there was

20 no finding, and there is no evidence to show, that the appellant knew or

21 had reason to know beforehand that the "baby bombs" would be used in that

22 attack, so the question of preventing the use of those bombs on civilian

23 targets does not arise.

24 The Appeals Chamber, therefore, concludes that on the basis of the

25 trial findings and evidence admitted on appeal, the issue of failure to

1 prevent in terms of Article 7(3) of the Statute does not arise in relation

2 to this part of the case.

3 The appellant then submits that additional evidence shows that the

4 Vitezovi unit was outside his command and often acted under the direct

5 orders of others, particularly Kordic and the Ministry of Defence in

6 Mostar.

7 As to whether the appellant exercised effective control over the

8 Vitezovi, on the basis of the trial and additional evidence before it, the

9 Appeals Chamber is satisfied beyond reasonable doubt that the appellant

10 had de jure command over that unit. If reporting criminal acts of

11 subordinates to appropriate authorities is evident of the material ability

12 to punish them in the circumstances of a certain case, albeit only to a

13 very limited degree, the appellant had that limited ability in this case.

14 His command responsibility is, consequently, an issue in this case.

15 The Trial Chamber did not set out the necessary factual basis for

16 its finding that the appellant failed to punish, among others, the

17 Vitezovi for their crimes committed in the town. This lack of analysis of

18 relevant evidence on a critical element of the criminal responsibility of

19 the appellant alone justifies overturning the relevant convictions of the

20 appellant under Article 7(3).

21 However, the Trial Chamber made no assessment of the evidence

22 submitted at trial by the appellant that he initiated an investigation

23 into the lorry bombing and reported the result of the investigation to his

24 superiors and that he reported to his superiors the attack of 18 July by

25 the Vitezovi on Stari Vitez. In relation to the first of these two

1 incidents, no reasonable trier of fact could have reached the conclusion

2 of the Trial Chamber that the appellant failed to punish in relation to

3 that offence.

4 As to the report of the attack of July 18 1993, on the basis of

5 trial and additional evidence, the Appeals Chamber is not satisfied beyond

6 reasonable doubt that the Vitezovi committed an offence by using the "baby

7 bombs." Without the appellant knowing that his subordinates used "baby

8 bombs" in that attack, the question of his superior responsibility does

9 not arise.

10 In respect of the attack of 16 April 1993, no reasonable trier of

11 fact could have, in the absence of a proper factual basis, reached the

12 conclusion of the Trial Chamber that the appellant should be held

13 responsible under Article 7(3) of the Statute for the failure to punish in

14 relation to the crimes that occurred during the attack.

15 The next ground of appeal concerns the responsibility for the

16 attacks for crimes committed in the Busovaca Municipality. The

17 Trial Chamber found the appellant responsible for the attacks on the

18 villages of Loncari and Ocehnici in April 1993. The Trial Chamber also

19 found that by giving orders to the military police in April 1993, the

20 appellant intentionally took the risk that very violent crimes would

21 result.

22 The appellant submitted that he did not issue any orders for an

23 attack on Loncari or Ocehnici, and that the Trial Chamber erred in

24 attributing crimes committed by the military police, including the

25 Jokers, to him.

1 Having examined the finding of the Trial Chamber, the

2 Appeals Chamber considers that the Trial Chamber made a finding pursuant

3 to Article 7(1) of the Statute. The Appeals Chamber will apply the

4 correct legal standard to determine whether the appellant is responsible

5 under Article 7(1) of the Statute for the crimes in Loncari and Ocehnici.

6 Given the absence of direct evidence that the appellant ordered

7 the attacks in Loncari and Ocehnici in April 1993, the Appeals Chamber

8 finds that no reasonable trier of fact could conclude beyond reasonable

9 doubt that the appellant ordered these attacks. The Appeals Chamber notes

10 that the additional evidence admitted on appeal only bolsters this

11 conclusion. As a result, it is not necessary to examine whether the

12 appellant was aware of a substantial likelihood that crimes would be

13 committed.

14 In light of the parties's submissions on the issue, and in order

15 to clarify the point, the Appeals Chamber also deems it necessary to

16 discuss the apparent finding of the Trial Chamber that the appellant was

17 responsible for implementing, not ordering, attack in January 1993 in

18 Busovaca. The Appeals Chamber considers that the Trial Chamber did not

19 discuss evidence in relation to or assess the appellant's responsibility

20 for crimes committed 234 Busovaca in January 1993. As a result, the

21 Appeals Chamber considers that no finding was made pursuant to Article

22 7(1) in relation to the January 1993 attacks in Busovaca.

23 In relation to the appellant's command responsibility for the

24 crimes committed in Busovaca, the Appeals Chamber considers that the

25 Trial Chamber failed to examine and to discuss in an adequate manner the

1 evidence before it in relation to the legal requirements of Article 7(3)

2 of the Statute. As a result, the Appeals Chamber concludes that no

3 finding was made pursuant to Article 7(3) of the Statute concerning the

4 crimes committed in Loncari and Ocehnici in April 1993, and it declines to

5 consider the issue any further.

6 In relation to count 14 of the indictment concerning the

7 destruction of religious or educational property, the Appeals Chamber

8 submit -- the appellant submitted that the trial judgement was vague and

9 failed to identify the evidence of such destruction in Busovaca. In the

10 disposition, the Trial Chamber found the appellant guilty on the basis of

11 count 14 pursuant to Article 7(1) and 7(3), but in the section of the

12 trial judgement concerning Busovaca, there is no discussion or analysis

13 pertaining to the charges contained in count 14, and no specific finding.

14 In light of the foregoing, the Appeals Chamber considers that the

15 conviction under count 14 of the indictment in relation to Busovaca must

16 be vacated.

17 The next ground concerns alleged errors concerning the appellant's

18 responsibility for crimes committed in the Kiseljak Municipality. The

19 Appeals Chamber considers that the Trial Chamber did not find that the

20 appellant ordered the crimes in Kiseljak in April 1993. Instead, the

21 Trial Chamber found that the appellant "deliberately ran the risk" of

22 making Muslims and their property the main targets of these offensives,

23 and concluded that he "had to have known" that by ordering such attacks,

24 very violent crimes would result. The Appeals Chamber will apply the

25 correct legal standard to determine whether the appellant is responsible

1 under Article 7(1) of the Statute for the crimes which occurred in April

2 1993 in Kiseljak.

3 The Appeals Chamber notes that the Trial Chamber found that

4 through the offensives and the military assets employed, the appellant

5 intended to make these populations flee. In the view of the

6 Appeals Chamber, the Trial Chamber seemed to find that the appellant

7 intended to effect forcible transfers of civilians through these

8 offensives.

9 In support of its assertion that the appellant deliberately ran

10 the risk of making Muslim civilians and their property the primary targets

11 of the offensives launched on 18 April 1993, the Trial Chamber had found

12 that the combat preparation order and combat order were categorical and

13 hate-engendering, that the appellant employed terms in these orders which

14 were not strictly military and had emotional connotations which were such

15 as to incite hatred and vengeance against the Muslim populations. The

16 Trial Chamber had further considered that the appellant used radical words

17 connoting eradication and cited the term "mop up" contained in D300 as an

18 example.

19 The Appeals Chamber considers that the trial evidence illustrates

20 that there were military motivations underlying the issuance of the

21 appellant's orders. The Appeals Chamber finds that, on the basis of the

22 evidence relied upon by the Trial Chamber, no reasonable trier of fact

23 could have come to the conclusion beyond reasonable doubt that the

24 appellant intended to effect forcible transfers of civilians. The

25 Appeals Chamber further find that this evidence does not prove beyond

1 reasonable doubt that the appellant was aware of a substantial likelihood

2 that crimes would be committed in the execution of his orders. For the

3 foregoing reasons, the Appeals Chamber finds that no reasonable trier of

4 fact could conclude that the appellant was responsible under Article 7(1)

5 of the Statute for the crimes committed in April 1993 in Kiseljak.

6 Additional evidence on appeal confirms that the language contained

7 in the order does not necessarily connote eradication or forcible

8 transfer.

9 As to the June 1993 attacks in Kiseljak, the Appeals Chamber

10 observes that in concluding that the appellant ordered the attacks, the

11 Trial Chamber did not refer to any evidence which would show that he did

12 so. Indeed, there is no evidence on the record showing that the appellant

13 ordered these attacks. The Appeals Chamber finds that no reasonable trier

14 of fact could have come to the conclusion beyond reasonable doubt that the

15 appellant ordered the June 1993 attacks in Kiseljak. As a result, it is

16 not necessary to examine whether the appellant was aware of a substantial

17 likelihood that crimes would be committed. The Appeals Chamber,

18 therefore, finds that no reasonable trier of fact could conclude that the

19 appellant was responsible under Article 7(1) of the Statute for the crimes

20 committed in Kiseljak in June 1993.

21 The Appeals Chamber further observes that in the trial judgement,

22 there is no discussion pertaining to Article 7(3) responsibility on the

23 part of the appellant for crimes committed in April 1993 and June 1993.

24 As a result, the Appeals Chamber concludes that no finding was made

25 pursuant to Article 7(3) in relation to the June 1993 attacks in Kiseljak,

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1 and it declines to consider the issue any further.

2 The next ground concerns alleged errors concerning the appellant's

3 responsibility for detention-related crimes. The trial judgement

4 addresses counts 15 to 20 of the second amended indictment in a section

5 entitled "detentioned-related crimes," as they entail a deprivation of

6 freedom.

7 As to counts 15 and 16, concerning inhumane and cruel treatment,

8 the Trial Chamber found that the appellant was guilty pursuant to

9 Article 7(3) of the Statute for the crimes committed in various detention

10 facilities, and pursuant to Article 7(1) of the Statute for crimes

11 associated with trench digging.

12 The Appeals Chamber considers that the text of the trial judgement

13 is insufficiently clear as to how the Trial Chamber justified its

14 conclusion that the appellant ordered the detentions. It is a conclusion

15 arrived at by extrapolation. As a result, the Appeals Chamber finds that

16 no reasonable trier of fact could have concluded that the appellant

17 ordered the detentions, and the finding of the Trial Chamber is

18 overturned.

19 The Trial Chamber also found that the appellant -- found the

20 appellant guilty pursuant to Article 7(1) of the Statute for ordering the

21 detainees to dig trenches and for the treatment they suffered as a result.

22 The Appeals Chamber finds that the use of persons taking no active part in

23 hostilities to prepare military fortifications for use in operations and

24 against the forces with whom those persons identify or sympathise is a

25 serious attack on human dignity and causes serious mental (and depending

1 on the mental (and depending on the circumstances, physical) suffering or

2 injury and that any order to compel persons taking no active part in the

3 hostilities to dig trenches or to prepare other forms of military

4 installations under such circumstances constitutes cruel treatment.

5 The Appeals Chamber accordingly finds that a reasonable trier of

6 fact could have come to the conclusion that the appellant has violated the

7 laws or customs of war Article 3 of the Statute and is guilty under

8 Article 16 for ordering the use of detainees to dig trenches.

9 The Trial Chamber further found that the appellant by ordering the

10 forced labour knowingly took the risk that his soldiers might commute

11 violent acts against vulnerable detainees. The Appeals Chamber finds that

12 there is insufficient evidence from which to draw the conclusion beyond

13 reasonable doubt that the appellant ordered that detainees be used to dig

14 trenches with the awareness of the substantial likelihood that crimes

15 would be committed in the execution of those orders. On the contrary,

16 while there is evidence that the appellant did order trenches to be dug by

17 detainees in specific instances, the evidence does not prove beyond a

18 reasonable doubt that the appellant ordered that trenches be dug with the

19 awareness of the substantial likelihood that crimes would be committed.

20 The appellant is, therefore, not guilty of counts 15 and 16 under Article

21 7(1) of the Statute for the crimes associated with trench digging.

22 The Appeals Chamber considers that the Trial Chamber found that

23 the appellant knew of the circumstances and conditions under which the

24 Muslims were detained in the facilities and in any case did not perform

25 his duties with the necessary reasonable diligence.

1 The trial evidence considered demonstrates that the appellant on

2 occasion knew of the mistreatment of noncombatant Bosnian Muslims in

3 detention facilities. Furthermore, the Appeals Chamber has considered

4 evidence from the trial record illustrating that detainees were held in

5 locations in close proximity to the appellant's headquarters in Vitez,

6 namely, the Vitez Cultural Centre (containing the cinema hall) and the

7 Vitez veterinary hospital.

8 The Appeals Chamber concludes that it was open to a reasonable

9 trier of fact to conclude beyond reasonable doubt that the appellant knew

10 that detainees had been unlawfully detained in the two locations of the

11 Vitez Cultural Centre (containing the cinema hall) and the Vitez

12 veterinary hospital, and that he was aware that the conditions of their

13 detention had been unlawful. This conclusion has not been contradicted by

14 evidence admitted on appeal.

15 The Appeals Chamber is convinced beyond reasonable doubt that the

16 appellant, notwithstanding his knowledge that detention-related crimes had

17 been committed in the Vitez Cultural Centre and the Vitez veterinary

18 hospital, failed to punish those subordinates of his who were responsible

19 and over whom he was able to exercise effective control, and he failed to

20 report the infractions of which he was aware to the competent authorities.

21 The appellant is, accordingly, guilty under count 15 of grave breaches of

22 the Geneva Conventions, inhumane treatment, pursuant to Article 2(b) and

23 7(3) of the Statute.

24 As to counts 17 and 18, the Trial Chamber convicted the appellant

25 of taking hostages, first for use in prisoner exchanges, and second in

1 order to deter ABiH military operations against the HVO.

2 The Trial Chamber found that the appellant did not order that

3 hostages be taken or used, but that certain detainees were "threatened

4 with death" in order to prevent the ABiH advance on Vitez, and that the

5 appellant was responsible by virtue of having ordered the defence of

6 Vitez.

7 The Appeals Chamber considers that it does not follow that the

8 appellant incurred criminal responsibility for someone else's unlawful

9 choice of how to execute his legitimate order. There is no necessary

10 causal nexus between an order to defend a position and the taking of

11 hostages, and the Trial Chamber was wrong so to infer.

12 The Trial Chamber's finding is not supported by the evidence, and

13 no reasonable trier of fact could have made that finding. The findings of

14 the Trial Chamber with respect to hostage taking are overturned.

15 As to counts 19 and 20, the Trial Chamber found that the appellant

16 ordered the use of detainees as human shields to protect the headquarters

17 of the appellant at the Hotel Vitez on 20 April 1993 which inflicted

18 considerable mental suffering upon the persons involved.

19 The use of prisoners of war or civilian detainees as human shields

20 is prohibited by the provisions of the Geneva Conventions, and it may

21 constitute inhumane or cruel treatment under Articles 2 and 3 of the

22 Statute respectively where the other elements of these crimes are met.

23 Using protected detainees as human shields constitutes a violation of the

24 provisions of the Geneva Conventions regardless of whether those human

25 shields were actually attacked or harmed. Indeed, the prohibition is

1 designed to protect detainees from being exposed to the risk of harm, and

2 not only to the harm itself. To the extent that the Trial Chamber

3 considered the intensity of the shelling of Vitez on 20 April 1993, that

4 consideration was superfluous to an analysis of a breach of the provisions

5 of the Geneva Conventions, but may be relevant to whether the use of the

6 protected detainees as human shields amounts to inhumane treatment for the

7 purposes of Article 2 of the Statute.

8 The Trial Chamber had no evidence before it permitting it to

9 conclude that the appellant positively ordered the use of the detainees as

10 human shields. The Appeals Chamber finds that the reasoning of the

11 Trial Chamber in finding the appellant responsible for positively ordering

12 the use of civilian detainees as human shields is flawed. A factual

13 conclusion that detainees were, in fact, used as human shields on a

14 particular occasion does not lead to the inference that the appellant

15 positively ordered that to be done.

16 A conviction under Article 7(1) is not, however, limited to the

17 positive act of ordering. The Appeals Chamber notes that the appellant

18 was indicted by the second amended indictment for having - through acts or

19 omissions - planned, instigated, ordered or otherwise aided and abetted in

20 the planning, preparation, or execution of the unlawful and inhumane

21 treatment of Bosnian Muslims. The second amended indictment therefore

22 fairly charges the appellant with other forms of participation under

23 Article 7(1) of the Statute in addition to the positive act of ordering.

24 In particular, criminal responsibility for an omission pursuant to

25 Article 7(1) of the Statute is expressly envisaged by the second amended

1 indictment.

2 The Appeals Chamber considers that the use of the detainees as

3 human shields caused them serious mental harm and constituted a serious

4 attack on human dignity and concludes that the appellant's conviction for

5 the use of human shields under count 19 was correct in substance.

6 However, in the absence of proof that he positively ordered the use of

7 human shields, the appellant's criminal responsibility is properly

8 expressed as an omission pursuant to Article 7(1) as charged in the second

9 amended indictment. The Appeals Chamber accordingly finds that the

10 elements constituting the crime of inhumane treatment have been met, and

11 that the appellant is guilty under Article 7(1) for the inhumane treatment

12 of detainees occasioned by their use as human shields pursuant to

13 Article 2(b) of the Statute.

14 The last ground of appeal is the appeal against sentence. The

15 Trial Chamber sentenced the appellant to 45 years' imprisonment, and the

16 appellant has appealled against this sentence. The appellant contends

17 that the sentence imposed on him should be vacated.

18 The Appeals Chamber has emphasised in previous judgements that

19 sentencing is a discretionary decision and that it is inappropriate to set

20 down a definitive list of sentencing guidelines. The sentence must always

21 be decided according to the facts of each particular case and the

22 individual guilt of the perpetrator.

23 In this case, the Appeals Chamber heard several arguments by the

24 appellant against the Trial Chamber's sentence. These arguments have been

25 considered in the judgement of the Appeals Chamber but will mostly not be

1 discussed in this hearing in the interests of brevity.

2 However, the Appeals Chamber considers that it was wrong for the

3 Trial Chamber to hold that "it is impossible to identify which acts would

4 relate to which of the various counts - other than those supporting the

5 prosecution for and conviction of persecution under count 1." Where it is

6 impossible to identify which acts would relate to which of the various

7 counts, it is likewise impossible to arrive at distinct convictions.

8 Either an accused person is guilty of different crimes constituted by

9 different elements which may sometimes overlap (but never entirely) or the

10 accused is convicted of that crime with the most specific elements, and

11 the remaining counts in which those elements are duplicated are dismissed

12 as impermissibly cumulative. The Appeals Chamber finds that the

13 reasonable of the Trial Chamber is wrong in law. The Trial Chamber also

14 erred in failing to consider the appellant's real and sincere remorse as a

15 mitigating factor and in considering his discriminatory intent as an

16 aggravating factor in light of his conviction for persecutions at trial.

17 The Appeals Chamber has granted part of the appeal of the

18 appellant against his sentence. In this case, however, the application of

19 the established test for the revising of a sentence would be

20 inappropriate. The Appeals Chamber in this appeal is being called upon

21 not simply to affirm or revise the sentence imposed by the Trial Chamber,

22 but rather to impose a sentence de novo. Instead of revising the sentence

23 of the Trial Chamber, the Appeals Chamber will substitute its own reasoned

24 sentence for that of a Trial Chamber on the basis of its own findings, a

25 function which the Appeals Chamber considers that it may perform in this

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1 case without remitting the case to the Trial Chamber.

2 The Appeals Chamber notes that no evidence has been presented to

3 suggest that the appellant is of bad character, but that several witnesses

4 were at pains to point out the appellant's good character, his equitable

5 treatment of Bosnian Muslims, both before and during the war, and the

6 absence of any bias against Bosnian Muslims, and his professionalism as a

7 soldier. There was also evidence of respect for him by his ABiH

8 opponents, and several witnesses attested to the fact that he is a man of

9 duty. Furthermore, the appellant is a father to young children.

10 In its discussion of the factors relevant to sentencing above, the

11 Appeals Chamber has identified the following factors as aggravating

12 circumstances proved beyond reasonable doubt: (i) the position of the

13 accused as a colonel in the HVO and his position as commander of the

14 regional forces in the Central Bosnia Operative Zone; and (ii) the fact

15 that many of the victims of the crimes of which the appellant has been

16 found guilty were civilians.

17 As mitigating circumstances proved on the balance of

18 probabilities, there are: (i) the appellant's voluntary surrender to the

19 International Tribunal; (ii) his real and sincere expression of remorse;

20 (iii) his good character, with no prior criminal convictions; (iv) his

21 record of good comportment at trial and in detention; (v) his personal and

22 family circumstances, including his poor health; (vi) his having been

23 detained for over eight years pending a final outcome in this case; and

24 (vii) his particular circumstances at the outbreak of and during the war.

25 Rule 87(C) provides that a Chamber may decide to exercise its

1 power to impose a single sentence reflecting the totality of the criminal

2 conduct of the accused, and the Appeals Chamber decides to impose a single

3 sentence in this case, as the criminal conduct for which he has been

4 convicted forms part of similar overall behaviour, and occurred within a

5 close temporal context.

6 I shall now read the operative paragraphs of the Appeals Chamber's

7 judgement, the disposition in full.

8 Mr. Blaskic, would you please stand.

9 [The appellant stands]

10 JUDGE POCAR: Here is the disposition:

11 For the foregoing reasons, the Appeals Chamber,

12 Pursuant to Article 25 of the Statute and Rules 117 and 118 of the

13 Rules;

14 Noting the respective written submissions of the parties and the

15 arguments they presented at the hearings of 16 and 17 December 2003;

16 Sitting in open session;

17 Dismisses the appellant's ground of appeal concerning denial of

18 due process of law;

19 Allows by majority, Judge Weinberg de Roca dissenting, the

20 appellant's ground of appeal concerning his responsibility for the crimes

21 committed in Ahmici, Santici, Pirici, and Nadioci, on 16 April 1993,

22 reverses the appellant's convictions pursuant to Article 7(1) of the

23 Statute under counts 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, and 14 for

24 these crimes, and reverses the appellant's convictions pursuant to Article

25 7(3) of the Statute under counts 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13,

1 and 14 for these crimes;

2 Allows unanimously the appellant's ground of appeal concerning his

3 responsibility for the crimes committed in parts of the Vitez Municipality

4 other than Ahmici, Santici, Pirici, and Nadioci, in April, July, and

5 September 1993, reverses his convictions pursuant to Article 7(1) of the

6 Statute under counts 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14 for

7 these crimes and reverses his convictions pursuant to Article 7(3) of the

8 Statute under counts 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, and 14 for

9 these crimes;

10 Allows unanimously, the appellant's ground of appeal concerning

11 his responsibility for crimes committed in Loncari and Ocehnici in the

12 Busovaca Municipality in April 1993, reverses his convictions under

13 Article 7(1) of the Statute under counts 1, 3, 4, 5, 6, 7, 8, 9, 10, 11,

14 12, 13, and 14 for these crimes and finds that no finding was made by the

15 Trial Chamber pursuant to Article 7(1) of the Statute in relation to the

16 January 1993 attacks in Busovaca and that no finding was made by the

17 Trial Chamber pursuant to Article 7(3) of the Statute concerning the

18 crimes committed in Loncari and Ocehnici in April 1993;

19 Allows unanimously the appellant's ground of appeal concerning his

20 responsibility for the crimes committed in April 1993 in Kiseljak,

21 reverses his conviction under Article 7(1) of the Statute under counts 1,

22 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, and 14 for these crimes, and finds

23 that no finding was made by the Trial Chamber pursuant to Article 7(3) of

24 the Statute in relation to the crimes;

25 Allows unanimously the appellant's ground of appeal concerning his

1 responsibility for detention-related crimes to the extent that his appeal

2 against the convictions under counts 17, 18, and 20 pursuant to Article

3 7(1) of the Statute is granted and reverses his convictions under those

4 counts;

5 Affirms unanimously the appellant's convictions under, one, count

6 15 pursuant to Article 7(3) of the Statute for the detention-related

7 crimes committed in the relevant detention facilities; two, count 16

8 pursuant to Article 7(1) of the Statute for ordering the use of protected

9 persons for the construction of defensive military installations; and

10 three, count 19 under Article 7(1) of the Statute for the inhumane

11 treatment of detainees occasioned by their use as human shields, and finds

12 that no finding was made by the Trial Chamber pursuant to Article 7(3) of

13 the Statute under counts 15 or 16 in relation to the use of protected

14 persons for the construction of defensive military installations under

15 counts 17 or 18 in relation to the taking of hostages and under count 19

16 and 20 for the inhumane treatment of detainees occasioned by their use as

17 human shields;

18 Dismisses the appellant's appeal against convictions in all other

19 respects;

20 Allows unanimously, in part, the appellant's ground of appeal

21 against the sentence and imposes by majority, Judge Weinberg de Roca

22 dissenting, a new sentence;

23 Sentences the appellant to 9 years imprisonment to run as of this

24 day, subject to credit being given under Rule 101(C) of the Rules for the

25 period the appellant has already spent in detention, that is, from 1st

1 April 1996 to the present day;

2 Orders, in accordance with Rule 103(C) and Rule 107 of the Rules

3 that the appellant is to remain in the custody of the International

4 Tribunal pending the finalisation of arrangements for his transfer to the

5 State where his sentence will be served.

6 This judgement is signed by Judges Mumba, Guney, Schomburg,

7 Weinberg de Roca, and myself this 29th day of July 2004 at The Hague,

8 Netherlands.

9 Judge Schomburg appends a separate opinion limited to the

10 sentence.

11 Judge Weinberg de Roca appends a partial dissenting opinion.

12 Madam Registrar, would you please deliver copies of the judgement

13 to the parties.

14 The accused may be seated.

15 [The appellant sits down]

16 JUDGE POCAR: This concludes the hearing. The Appeals Chamber now

17 stands adjourned.

18 --- Whereupon the Appeal Judgement adjourned

19 at 10.49 a.m.

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