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
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
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
12 Blank page inserted to ensure the pagination between the English and
13 French transcripts correspond
1 appellant challenges the standards set forth in the trial judgement
2 concerning the form of criminal participation in Article 7(1) of the
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
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
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
12 Blank page inserted to ensure the pagination between the English and
13 French transcripts correspond
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
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
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
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
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
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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13 French transcripts correspond
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
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
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
12 Blank page inserted to ensure the pagination between the English and
13 French transcripts correspond
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
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
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
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
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
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
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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13 French transcripts correspond
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
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
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
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
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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13 French transcripts correspond
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
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
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
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,
9 Judge Schomburg appends a separate opinion limited to the
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.