Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                           Thursday, 12 November 2009

 2                           [Appeal Judgement]

 3                           [Open session]

 4                           [The appellant entered court]

 5                           --- Upon commencing at 9.02 a.m.

 6             JUDGE POCAR:  Good morning to everyone.

 7             Mr. Registrar, would you please call the case.

 8             THE REGISTRAR:  Good morning, Your Honours.  Good morning to

 9     everyone in the courtroom.  This is case number IT-98-29/1-A, the

10     Prosecutor versus Dragomir Milosevic.

11             JUDGE POCAR:  Before I commence, Mr. Milosevic -- is there a

12     problem?  I don't -- so we have technical problem.  Can you hear me?  Is

13     it okay?

14             May I ask Mr. Milosevic whether he can hear the proceedings in a

15     language he understands.

16             THE APPELLANT: [Interpretation] Thank you for asking,

17     Your Honour.  Yes, I can.  I can hear everything and I can follow.

18     Everything is all right.

19             JUDGE POCAR:  Thank you very much.

20             May I have now the appearances of the parties.  For the

21     Prosecution.

22             MR. ROGERS:  Yes.  Good morning, Your Honours.  Paul Rogers,

23     together with Manuel Eising appearing on behalf of the Prosecution, and

24     our case manager today, Mr. Colin Nawrot.

25             JUDGE POCAR:  Thank you.

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 1             And now the Defence.

 2             MR. TAPUSKOVIC: [Interpretation] Good morning, Your Honours.  My

 3     name is Branislav Tapuskovic.  I'm here appearing as Defence counsel for

 4     Dragomir Milosevic, and together with me is my co-counsel,

 5     Branislava Isailovic.  Thank you.

 6             JUDGE POCAR:  Thank you.

 7             As indicated in the Scheduling Order issued on 15 October 2009

 8     and pursuant to Rule 117(D) of the Rules of Procedure and Evidence of the

 9     Tribunal, today the Appeals Chamber will deliver its judgement in the

10     case of the Prosecutor versus Dragomir Milosevic.  Following the practice

11     of the Tribunal, I will not read out the text of the judgement, except

12     for the disposition.  Instead, after recalling the main issues raised on

13     appeal, I will summarise the findings of the Appeals Chamber.  I should

14     emphasise that the following summary is not an integral part of the

15     judgement.  The only authoritative account of the Appeals Chamber's

16     conclusions and the related reasoning is to be found in the written

17     judgement, copies of which shall be made available to the parties at the

18     end of this hearing.

19             The events giving rise to these appeals took place in the city of

20     Sarajevo, Bosnia and Herzegovina, between August 1994 and November 1995.

21     During the relevant period, Dragomir Milosevic held the position of

22     commander of the Sarajevo-Romanija Corps.  The Trial Chamber found that

23     the SRK troops under Milosevic's command were responsible for

24     continuously sniping and shelling the area of Sarajevo, resulting in the

25     killing and serious injury of many civilians.  It thus found Milosevic

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 1     guilty pursuant to Article 7(1) of the Statute for planning and ordering

 2     the crimes of terror, as a violation of the laws or customs of war,

 3     Count 1; murder and inhumane acts, as crimes against humanity, committed

 4     through sniping, Counts 2 and 3; and shelling, Counts 5 and 6.  As a

 5     consequence of the conviction entered under Count 1, the Trial Chamber

 6     dismissed the charges of unlawful attacks against civilians under

 7     Counts 4 and 7, as impermissibly cumulative, on the ground that the

 8     elements of the crime of unlawful attack against civilians are fully

 9     encompassed by the crime of terror.  The Trial Chamber imposed a single

10     sentence of 33 years of imprisonment.

11             Both parties appealed the trial judgement.  Milosevic sets forth

12     12 grounds of appeal against the trial judgement.  He requests the

13     Appeals Chamber to acquit him on all counts.  The Prosecution puts forth

14     a sole ground of appeal against the sentence and requests the

15     Appeals Chamber to increase the sentence imposed on Milosevic to life

16     imprisonment.  I will start with the grounds of appeal raised by

17     Milosevic, followed by the Prosecution's appeal.

18             Under the first part of his first ground of appeal, Milosevic

19     argues that the Trial Chamber erroneously established that all the

20     required elements of the crime of terror have been met.  Regarding the

21     actus reus of the crime, the Appeals Chamber finds that the Trial Chamber

22     misinterpreted the Galic appeal judgement by stating that "actual

23     infliction of death or serious harm to body or health is a required

24     element of the crime of terror," and thus committed an error of law.

25     Causing death or serious injury to body or health represents only one of

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 1     the possible modes of commission of the crime of terror, and thus is not

 2     an element of the offence per se.  What is required, however, in order

 3     for the offence to fall under the jurisdiction of this Tribunal, is that

 4     the victims suffered grave consequences resulting from the acts or

 5     threats of violence; such grave consequences include, but are not limited

 6     to, death or serious injury to body or health.

 7             For reasons explained in the judgement, the Appeals Chamber

 8     further rejects the Prosecution's submission that the actus reus of the

 9     crime of terror is comprised of acts capable of spreading terror.  That

10     said, in view of the Trial Chamber's findings in the present case that

11     all the incidents imputed to the SRK constituted unlawful attacks against

12     civilians and thus caused death or serious injury to body or health of

13     civilians, the required threshold of gravity based on those incidents has

14     been met.  Moreover, the Trial Chamber established that the incidents had

15     a strong psychological impact on the population of Sarajevo, which, in

16     the circumstances of the case, also satisfies the threshold of gravity

17     required for the crime to fall under the Tribunal's jurisdiction.

18             Consequently, the Appeals Chamber finds that the Trial Chamber's

19     legal error regarding the actus reus of the crime of terror is without

20     impact on its analysis of the evidence of the case and eventually on the

21     findings of guilt.  Nonetheless, in light of the Trial Chamber's legal

22     error, the Appeals Chamber finds it necessary to provide guidance with

23     respect to the applicable law on cumulative convictions in relation to

24     the crime of terror and unlawful attacks against civilians.  It finds

25     that contrary to the Trial Chamber's conclusion, each of the offences in

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 1     question has an element requiring proof of a fact not required by the

 2     other, thus allowing cumulative convictions to be entered.  However,

 3     considering that the matter of cumulative convictions has not been

 4     appealed by the Prosecution, the Appeals Chamber has not considered the

 5     matter any further.

 6             The Appeals Chamber rejects Milosevic's argument that the

 7     Trial Chamber could not take into account evidence of the actual terror

 8     experienced by the civilian population when establishing the mens rea of

 9     the crime.  It finds that both the actual infliction of terror and the

10     indiscriminate nature of the attacks were reasonable factors for the

11     Trial Chamber to consider in determining Milosevic's specific intent.

12     The Appeals Chamber recalls in this regard that while the actual

13     terrorisation of the civilian population is not an element of the crime,

14     evidence of such terrorisation may contribute to establishing other

15     elements of the crime of terror.  As regards the indicia mentioned in the

16     Galic appeal judgement, the Appeals Chamber emphasises that they do not

17     represent an exhaustive list of mandatory considerations but an

18     indication of some factors that may be taken into account according to

19     the circumstances of the case.  The Appeals Chamber finds that Milosevic

20     has failed to demonstrate any discernible error in the Trial Chamber's

21     reasoning in this regard.  This subground is therefore dismissed,

22     Judge Liu dissenting on the question of the Tribunal's jurisdiction over

23     the crime of terror and on the elements of the offence.

24             In the second prong of his first ground of appeal, Milosevic

25     alleges that the Trial Chamber failed to establish beyond reasonable

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 1     doubt that the attacks carried out by the SRK were directed against

 2     civilians or that civilians were the victims of those attacks.  At the

 3     outset, the Appeals Chamber finds no error in the definition of civilians

 4     and of civilian population expounded by the Trial Chamber and rejects

 5     Milosevic's argument that the Trial Chamber presumed the civilian status

 6     of the victims.  As regards Milosevic's submission that the Trial Chamber

 7     erred in failing to consider entire areas of Sarajevo held by the Army of

 8     Bosnia and Herzegovina as military zones, the Appeals Chamber emphasises

 9     that there is no requirement that particular areas, or zones, be

10     designated as civilian or military in nature.  Rather, a case-by-case

11     distinction is to be made between the civilian population and combatants,

12     or between civilian and military objectives, targeted in each attack.

13     Accordingly, Milosevic's arguments in this regard are dismissed.

14             The Appeals Chamber further rejects Milosevic's allegation that

15     the Trial Chamber did not take into consideration the factors relevant to

16     its assessment of whether the SRK attacks were directed against the

17     civilian population.  It further dismisses without detailed consideration

18     Milosevic's unsupported challenges with respect to the civilian status of

19     the victims of a number of shelling and sniping incidents.  For reasons

20     spelled out in the judgement, Milosevic's first ground of appeal is

21     dismissed in its entirety.

22             Under his second ground of appeal, Milosevic argues that the

23     Trial Chamber erroneously established certain facts by relying on

24     evidence it had not admitted during the proceedings.  The Appeals Chamber

25     dismisses Milosevic's arguments concerning the Trial Chamber's reliance

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 1     upon a NATO weather report and his unsubstantiated submission that the

 2     psychological state of the civilian population in Sarajevo could not have

 3     been established without having recourse to an expert in psychology.

 4     Milosevic's arguments concerning the Siege of Sarajevo are addressed

 5     under his fourth ground of appeal.  Milosevic's second ground of appeal

 6     is therefore dismissed.

 7             Under his third ground of appeal, Milosevic contends that the

 8     Trial Chamber failed to consider the evidence as a whole, and in

 9     particular that it ignored the evidence showing the military activity of

10     the ABiH.  The Appeals Chamber finds that Milosevic fails to meet the

11     standard of review on appeal, and therefore dismisses this ground of

12     appeal.

13             Under his fourth ground of appeal, Milosevic challenges the

14     Trial Chamber's findings regarding the civilian status of the trams in

15     Sarajevo.  The Appeals Chamber notes that the Trial Chamber considered

16     evidence showing that trams were not used for transportation of troops or

17     military equipment.  With the exception of the sniping incident of

18     27 February 1995, the Trial Chamber was satisfied that there was no

19     military personnel present on the vehicles or in their vicinity at the

20     time the incidents took place.  With regard to the sniping incident of

21     27 February 1995, the Trial Chamber received conflicting evidence as to

22     the presence of one soldier on the tram.  The Appeals Chamber finds,

23     however, that Milosevic's assertion that the presence of one soldier

24     converted the tram into a military target due to the fact that it was

25     used for transportation of the military is untenable.

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 1             With respect to Milosevic's arguments regarding the siege, the

 2     Appeals Chamber considers that the Trial Chamber only used the term

 3     "siege" as a means of describing the factual situation before it,

 4     referring to the conditions in which the population of Sarajevo was

 5     trapped throughout the indictment period, and did not ascribe to it any

 6     legal qualification.  Accordingly, the Appeals Chamber finds that

 7     Milosevic fails to demonstrate that the Trial Chamber committed any error

 8     of law or of fact.  The remainder of Milosevic's arguments concerning

 9     this issue are also dismissed.

10             Milosevic's submissions regarding his absence from Sarajevo are

11     discussed under his 12th ground of appeal.  His fourth ground of appeal

12     is dismissed in all other respects.

13             Since Milosevic's fifth ground of appeal relates to the sentence

14     imposed by the Trial Chamber, it will be addressed at the end of this

15     summary in the part relevant to sentencing.

16             Under his sixth ground of appeal, Milosevic argues that the

17     Trial Chamber erred in fact in finding that Vojnicko Polje,

18     Alipasino Polje, Dobrinja, Sedrenik, Hrasnica, and Marin Dvor were

19     civilian areas within the city of Sarajevo.  The Appeals Chamber has

20     concluded that despite the somewhat confusing language used by the

21     Trial Chamber, it correctly engaged in a case-by-case analysis of the

22     targets and modalities of the attacks and not that of status of zones.

23     The Appeals Chamber is satisfied that the Trial Chamber correctly

24     established that the population of these neighbourhoods of Sarajevo had

25     civilian status at the time of the attacks targeting it.  Consequently,

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 1     Milosevic's sixth ground of appeal is dismissed in its entirety.

 2             Under his seventh ground of appeal, Milosevic alleges that the

 3     Trial Chamber erroneously found that SRK members were behind specific

 4     sniper fire.  The Appeals Chamber finds that concerning the sniping of

 5     Jasmina Tabakovic, Sanela Dedovic, Dervisa Selmanovic, Tarik Zunic, and

 6     Adnan Kasapovic, Milosevic fails to show any error in the Trial Chamber's

 7     reliance on the evidence on the record.  Milosevic also fails to show any

 8     error in the Trial Chamber's findings that trams were deliberately

 9     targeted by SRK snipers.  Likewise, as regards Nermin Divovic and

10     Dzenana Sokolovic, the Appeals Chamber finds that the Trial Chamber fully

11     considered and weighed all the relevant evidence and that Milosevic has

12     failed to demonstrate any discernible error in its reasoning.

13     Milosevic's seventh ground of appeal is therefore dismissed in its

14     entirety.

15             Under his eighth ground of appeal, Milosevic challenges the

16     Trial Chamber's finding that the SRK was behind certain shelling

17     incidents.  Concerning the shelling of the Livanjska Street on

18     8 November 1994, the Appeals Chamber finds that Milosevic fails to show

19     that the Trial Chamber's conclusions were erroneous.

20             As to the shelling of the Bascarsija flea market on

21     22nd December 1994, the Appeals Chamber notes that regarding the

22     direction of the fire, the evidence clearly shows that both shells that

23     exploded on 22nd December 1994 at the flea market were fired from

24     south-east.  However, concerning the origin of the fire, the record

25     indicates that the testimony of Witness W-12 was the only evidence

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 1     identifying it with precision as being Vidikovac.  However, Witness W-12

 2     based his conclusion solely on the sound of one shell being fired.

 3     Considering the location of the ABiH and SRK positions, both in the

 4     direction from which the shell was fired, the Appeals Chamber is of the

 5     view that an analysis of the charge, as explained in the Galic appeal

 6     judgement, could have determined the position where the shell was fired

 7     from with greater precision.  The Trial Chamber failed to address the

 8     deficiencies in the relevant evidence and to articulate its reasons for

 9     dismissing other possible conclusions with respect to the origin of fire.

10     The Appeals Chamber therefore finds that whereas the evidence on the

11     record could lead a reasonable Trial Chamber to conclude that it was most

12     likely that the shells that hit the flea market on 22nd December 1994

13     were fired from the SRK-held territory, it was insufficient to support

14     such a conclusion beyond reasonable doubt.

15             In light of the above, the Appeals Chamber grants Milosevic's

16     eighth ground of appeal in part and overturns his conviction for the

17     shelling incident of 22nd December 1994.  The remainder of this ground of

18     appeal is dismissed.

19             Under his 9th, 10th, and 11th ground of appeal, Milosevic

20     challenges various findings made by the Trial Chamber in relation to the

21     possession and use of the so-called modified air bombs.

22             The Appeals Chamber finds that Milosevic's general claim that

23     ABiH possessed modified air bombs simply reiterates his arguments

24     rejected by the Trial Chamber without showing any specific error in its

25     conclusions.  Moreover, the Appeals Chamber notes that the Trial Chamber

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 1     considered the allegation that ABiH used this type of weapons during the

 2     conflict in examining each of the individual incidents.  Consequently,

 3     even if Milosevic's general allegation regarding the ABiH possession of

 4     the air bombs during the indictment period were shown to be true, it

 5     would have been without bearing on the conclusions with respect to their

 6     use in the specific incidents which he was convicted of.

 7             Concerning the Trial Chamber's findings with regard to the

 8     shelling incident of 28 June 1995, Milosevic fails to show that no

 9     reasonable trier of fact could have found on the basis of the evidence

10     presented before the Trial Chamber that the TV building was hit by a

11     modified air bomb launched from the SRK-held territory.  Similarly, in

12     relation to the use of aerial bombs in explosions between 7 April and

13     23 August 1995, Milosevic fails to demonstrate that the relevant findings

14     of the Trial Chamber were erroneous.  In light of the above, Milosevic's

15     9th, 10th, and 11th grounds of appeal are dismissed.

16             Under his 12th ground of appeal, Milosevic challenges the

17     Trial Chamber's finding that he ordered the attacks against civilians.

18     The Appeals Chamber notes that the Trial Chamber did not analyse whether

19     Milosevic ordered every sniping or shelling incident, but rather

20     concluded that those incidents could only take place if ordered by him in

21     the framework of the campaign of terror.

22             At the outset, the Appeals Chamber notes that the Trial Chamber

23     held in its discussion of the widespread and systematic attack "a

24     campaign is a military strategy; it is not an ingredient of any of the

25     charges in the indictment, be that terror, murder, or inhumane acts."

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 1             The Appeals Chamber notes, however, that in other parts of the

 2     trial judgement, the Trial Chamber appears to hold Milosevic responsible

 3     for planning and ordering a criminal campaign.  The Appeals Chamber

 4     understands these references as illustrating that the crimes at stake

 5     formed a pattern comprised by the SRK military campaign in Sarajevo.

 6     Therefore, the expression "campaign" in the appeal judgement shall be

 7     understood as a descriptive term illustrating that the attacks against

 8     the civilian population in Sarajevo, in the form of sniping and shelling,

 9     were carried out as a pattern forming part of the military strategy in

10     place.

11             The Appeals Chamber notes that the Trial Chamber did not rely on

12     any evidence that would identify a specific order issued by Milosevic

13     with respect to the campaign of shelling and sniping in Sarajevo as such.

14     Rather, it relied on the nature of the campaign carried out in the

15     context of a tight command to conclude that it could only "have been

16     carried out on Milosevic's instructions and orders."  However, the

17     Appeals Chamber is not satisfied that the Trial Chamber established

18     beyond reasonable doubt the existence of a positive act required for the

19     actus reus of ordering showing that Milosevic instructed his troops to

20     perform a campaign of sniping and shelling of civilian population in

21     Sarajevo as a whole.

22             The Appeals Chamber further notes that Milosevic was convicted

23     for both planning and ordering the campaign of shelling and sniping of

24     civilians in Sarajevo during the indictment period, subsequent to Galic's

25     term in command.  With respect to the actus reus of planning, the

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 1     Trial Chamber held that, although Milosevic did not devise a strategy for

 2     Sarajevo on his own and acted in furtherance of orders by the

 3     VRS Main Staff, he was able to implement the greater strategy in a manner

 4     he saw fit.  It is unclear from these findings whether Milosevic was

 5     found to have participated in the design of the military strategy

 6     concerning the ongoing campaign as such or whether he planned each and

 7     every incident for which he was held responsible by the Trial Chamber.

 8     The Appeals Chamber further finds that it is unclear what specific

 9     evidence was relied upon by the Trial Chamber to come to these

10     conclusions.  In light of these uncertainties, the Appeals Chamber finds

11     that Milosevic's responsibility for planning the campaign of sniping and

12     shelling of civilians in Sarajevo as such could not be established beyond

13     reasonable doubt.

14             The Appeals Chamber emphasises that the findings above pertain

15     strictly to Milosevic's individual criminal responsibility.  These

16     findings do not affect the conclusions of the Trial Chamber as well as

17     those of the Galic Trial and Appeals Chambers that a campaign of shelling

18     and sniping the civilian population in Sarajevo took place during the

19     relevant period.

20             The Appeals Chamber now turns to consider Milosevic's

21     responsibility under Counts 1, 5, and 6 concerning the shelling

22     incidents.  On the basis of the evidence relied upon by the

23     Trial Chamber, coupled with the established fact that Milosevic was

24     directly involved in the use and deployment of modified air bombs and

25     issued orders regarding their use from as early as August 1994, the

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 1     Appeals Chamber is of the opinion that it was not unreasonable for the

 2     Trial Chamber to conclude beyond reasonable doubt that all the shelling

 3     involving modified air bombs and mortars fired by the SRK in Sarajevo

 4     during the indictment period could only occur pursuant to Milosevic's

 5     orders.  However, the Appeals Chamber notes that the Trial Chamber's

 6     conclusions that Milosevic planned the shelling incidents are based on

 7     essentially the same set of facts.  In the circumstances of this case,

 8     the Appeals Chamber proprio motu finds that Milosevic's responsibility

 9     for ordering the shelling incidents fully encompasses his criminal

10     conduct and thus does not warrant a conviction for planning the same

11     crimes.

12             Considering Milosevic's responsibility under Counts 1, 2, and 3,

13     which concern the sniping incidents, the Appeals Chamber finds that the

14     Trial Chamber abused its discretion by taking into account instances

15     where Milosevic acted towards preventing the sniping as proof of him

16     planning and ordering the sniping of civilians.  Second, the

17     Trial Chamber's reference to "an order for combat readiness and to draw

18     up a firing plan onto the Old Town" as an example of Milosevic planning

19     and ordering the sniping is not accompanied by any mention of an exhibit

20     or witness testimony, and the Appeals Chamber is unable to discern what

21     exactly the Trial Chamber was citing to.  Furthermore, the

22     Appeals Chamber finds that the evidence cited by the Trial Chamber in

23     supporting of its finding that Milosevic generally controlled the sniping

24     activity and training does not allow for a conclusion that the inference

25     by the trial judgement that Milosevic ordered all sniping incidents

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 1     attributed to the SRK snipers is the only reasonable one.

 2             However, the Appeals Chamber notes that its findings above do not

 3     exclude Milosevic being held responsible for the crimes committed through

 4     sniping under Article 7(3) of the Statute, considering that this mode of

 5     liability was pleaded in the indictment and discussed in the trial

 6     judgement.  The Appeals Chamber is satisfied that although it did not

 7     convict Milosevic under Article 7(3) of the Statute, the Trial Chamber

 8     made the findings necessary for the establishment of his command

 9     responsibility for the sniping incidents.  Having applied the correct

10     legal framework to the conclusions of the Trial Chamber, the

11     Appeals Chamber is satisfied that Milosevic's responsibility under

12     Article 7(3) of the Statute for having failed to prevent and punish the

13     said crimes committed by his subordinates is established beyond

14     reasonable doubt.

15             The Appeals Chamber now turns to consider Milosevic's arguments

16     raised under his fourth ground of appeal, claiming that he cannot be held

17     responsible for planning and ordering the incidents that took place

18     between 6 August and 10 September 1995, while he was receiving medical

19     treatment in Belgrade, namely the shelling of the BITAS building on

20     22nd August 1995 and of the Markale Market on 28 August 1995.

21             The Appeals Chamber recalls that while Milosevic was hospitalised

22     in Belgrade, the person in charge of the SRK command in Sarajevo was his

23     Chief of Staff, Cedomir Sladoje, who issued orders in lieu of the

24     commander.  Therefore, the Appeals Chamber finds that even though

25     Milosevic formally preserved his rank and duties, the position of

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 1     authority on the ground belonged to the stand-in commander, albeit

 2     temporarily.  The Prosecution suggests that it can be inferred from the

 3     totality of the evidence that prior to his departure Milosevic instructed

 4     Sladoje to continue the campaign in his absence.  However, the

 5     Appeals Chamber observes that this argument was not part of the

 6     Prosecution's case at trial and was thus not considered by the

 7     Trial Chamber.  In any case, the Appeals Chamber is not convinced that

 8     such an inference would be the only reasonable one from the evidence

 9     pointed to by the Prosecution.

10             The Appeals Chamber notes that the Trial Chamber did not

11     establish the existence of the prior positive act required for the actus

12     reus of ordering with respect to the two shelling incidents at stake.

13     The Appeals Chamber further finds that it was unreasonable for the

14     Trial Chamber to infer that Milosevic ordered these two shelling

15     incidents on the basis that the incidents in question were similar to the

16     ones that took place in his presence, and thus were part of the overall

17     plan and general orders of Milosevic.  Consequently, the Appeals Chamber

18     quashes the Trial Chamber's findings in this regard and acquits Milosevic

19     of the crimes related to the shelling of the BITAS building on the

20     22nd August 1995 and that of the Markale Market on 28 August 1995.

21             In light of the foregoing, the Appeals Chamber grants Milosevic's

22     12th and 4th grounds of appeal in part, and (i) upholds Milosevic's

23     convictions for ordering the shelling of the civilian population in

24     Sarajevo during the indictment period, except for the shelling of the

25     Bascarsija flea market on 22nd December 1994, of the BITAS building on

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 1     22 August 1995, and of the Markale Market on 28 August 1995; (ii) quashes

 2     his conviction for planning the same crimes; and (iii) replaces

 3     Milosevic's convictions for planning and ordering the sniping of the

 4     civilian population by respective convictions under Article 7(3) of the

 5     Statute.

 6             As shown in the reasoning of the judgement, in light of the

 7     acquittals with respect to the shelling of the BITAS building on

 8     22nd August 1995 and of the Markale Market on 28 August 1995, the

 9     Appeals Chamber did not need to address Milosevic's challenges in

10     relation to the victims thereof and the SRK participation therein.  In

11     this sense, the Trial Chamber's relevant findings remain undisturbed on

12     appeal.

13             I now turn to the grounds of appeal concerning the sentence

14     imposed by the Trial Chamber.

15             With respect to Milosevic's fifth ground of appeal, the

16     Appeals Chamber finds that read in its proper context, the

17     Trial Chamber's reference to Milosevic's planning and ordering of gross

18     and systematic violations of humanitarian law through his orders simply

19     exemplifies Milosevic's abuse of position, which was the specific

20     aggravating circumstance correctly considered by the Trial Chamber.  The

21     Appeals Chamber thus finds, Judge Liu dissenting, that the Trial Chamber

22     correctly took this factor into consideration in determining the sentence

23     to be imposed.  Similarly, Milosevic fails to show that the Trial Chamber

24     erred with respect to the other factors it considered in aggravation.

25     For the foregoing reasons, the Appeals Chamber dismisses Milosevic's

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 1     fifth ground of appeal.

 2             However, the Appeals Chamber proprio motu finds that the

 3     Trial Chamber counted certain factors twice when considering the gravity

 4     of the crimes and the aggravating circumstances.  In the

 5     Appeals Chamber's view, the following factors were impermissibly counted

 6     twice in the relevant sentencing considerations:  Abuse of position, the

 7     indiscriminate shelling of the civilians, and the terrorising effect of

 8     the shelling and sniping on the civilian population.  Nonetheless, the

 9     Appeals Chamber finds that even when properly taken into account only

10     once, these factors still warrant a sentence comparable to that imposed

11     by the Trial Chamber.

12             Under its sole ground of appeal, the Prosecution submits that the

13     Trial Chamber erred in law in imposing a sentence of 33 years'

14     imprisonment, which it argues was manifestly inadequate in the

15     circumstances.  The Prosecution submits that the only sentence which

16     accurately reflects Milosevic's responsibility is one of life

17     imprisonment.

18             Concerning the circumstances considered in mitigation, the

19     Appeals Chamber finds that the Prosecution does not identify any

20     discernible error in the exercise of the Trial Chamber's sentencing

21     discretion beyond disagreeing with its determination of the mitigating

22     factors.  Although another Trial Chamber could have reasonably decided

23     not to consider the above-mentioned factors as mitigating Milosevic's

24     guilt, the Appeals Chamber finds that the Trial Chamber acted within the

25     scope of its discretion in doing so.

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 1             With regard to the gravity of the crimes for which Milosevic was

 2     convicted, including his role in the crimes, a reading of the relevant

 3     section of the trial judgement clearly shows the Trial Chamber took into

 4     account all of the findings identified by the Prosecution.  As to the

 5     comparison with the sentence imposed of Stanislav Galic on appeal, the

 6     Appeals Chamber does not discount the assistance that may be drawn from

 7     previous decisions.  However, such assistance is often limited, as

 8     differences between cases are often more significant than similarities,

 9     and different mitigating and aggravating circumstances might dictate

10     different results.  While another reasonable trier of fact might have

11     convicted Milosevic to a higher sentence, the Appeals Chamber does not

12     consider that the sentence pronounced was unreasonable or plainly unjust

13     so as to require the Appeals Chamber's intervention.

14             For the foregoing reasons, the Appeals Chamber dismisses the

15     Prosecution's appeal in its entirety.

16             This concludes the Appeals Chamber's examination of the grounds

17     of appeal raised by the parties, and I will now move to the analysis of

18     how the Appeals Chamber's findings affect the sentence imposed by the

19     Trial Chamber.

20             The Appeals Chamber first finds that the overturning of

21     Milosevic's convictions for planning the crimes of terror, murder, and

22     inhumane acts does not warrant any reduction of the sentence, taking into

23     account Milosevic's criminal conduct and the seriousness of the crimes

24     that remain undisturbed.  Similarly, Milosevic's convictions under

25     Article 7(3), replacing those under Article 7(1) for the crimes committed

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 1     through sniping do not in the circumstances of the present case diminish

 2     his active and central role in the commission of the crimes.  Indeed,

 3     Milosevic did more than merely tolerate the crimes as a commander.  In

 4     maintaining and intensifying the campaign directed at the civilian

 5     population in Sarajevo throughout the indictment period, he provided

 6     additional encouragement to his subordinates to commit the crimes against

 7     the civilians.  Therefore, no reduction of sentence is warranted on this

 8     basis either.

 9             Concerning the specific incidents, the Appeals Chamber has

10     reversed Milosevic's convictions for the shelling of the Bascarsija flea

11     market on 22nd December 1994, the BITAS building on 22nd August 1995, and

12     that of the Markale Market on 28 August 1995.  Although these findings do

13     not change the fact that the entire population of Sarajevo was the victim

14     of the crime of terror committed under Milosevic's command, they do

15     involve fewer victims of the crimes of murder and other inhumane acts

16     imputable to Milosevic under Counts 5 and 6 of the indictment.  The

17     Appeals Chamber thus finds that this reversal has an impact, although

18     limited, on Milosevic's overall culpability.

19             I shall now read in full the disposition of the appeal judgement.

20             Mr. Milosevic, would you please rise.

21                           [The appellant stands]

22             JUDGE POCAR:  This is the disposition.

23             For the foregoing reasons, the Appeals Chamber, pursuant to

24     Article 25 of the Statute and Rules 117 and 118 of the Rules; noting the

25     respective written submissions of the parties and the arguments they

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 1     presented at the hearing of 21st July 2009; sitting in open session;

 2     allows in part Milosevic's fourth ground of appeal, insofar as it

 3     concerns the crimes committed during his absence from Sarajevo, and sets

 4     aside the finding that Milosevic was responsible for planning and

 5     ordering the shelling of the BITAS building on 22nd August 1995 and of

 6     the Markale Market on 28 August 1995, Counts 1 in part, 5 in part, and 6

 7     in part; allows in part Milosevic's eighth ground of appeal, and sets

 8     aside the finding that Milosevic was responsible for the planning and

 9     ordering the shelling of the Bascarsija flea market on 22nd December

10     1994, Counts 1 in part, 5 in part, and 6 in part; allows in part

11     Milosevic's 12th ground of appeal, sets aside Milosevic's convictions for

12     planning and ordering the crimes under Count 1, in the part concerning

13     the sniping of civilian population and under Counts 2 and 3, and finds

14     Milosevic responsible for those crimes under Article 7(3) of the Statute;

15     sets aside Milosevic's convictions for planning the crimes under Count 1,

16     in the part concerning the shelling of the civilian population, and under

17     Counts 5 and 6; dismisses Milosevic's appeal in all other respects;

18     affirms the remainder of Milosevic's convictions under Count 1, Judge Liu

19     dissenting, 5 and 6; dismisses the Prosecution's appeal; reduces

20     Milosevic's sentence to 29 years of imprisonment, subject to credit being

21     given under Rule 101(C) of the Rules; orders in accordance with

22     Rule 103(C) and Rule 107 of the Rules that Milosevic is to remain in the

23     custody of the Tribunal pending the finalisation of arrangements for his

24     transfer to the state where his sentence will be served.

25             Judge Liu appends a partly dissenting opinion.

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 1             Mr. Milosevic, you may be seated.

 2                           [The appellant sits down]

 3             JUDGE POCAR:  I will now request the Registrar to please deliver

 4     copies of the judgement to the parties.

 5             Thank you.

 6             This concludes the appellate proceedings in this case.  The

 7     Appeals Chamber will now rise.

 8                           --- Whereupon the hearing adjourned at 9.50 a.m.

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