1 Thursday, 30 November 2006

2 [Appeals Judgement]

3 [Open session]

4 [The appellant entered court]

5 --- Upon commencing at 4.14 p.m.

6 JUDGE POCAR: I would like to begin by wishing good afternoon to

7 everybody.

8 Registrar, may you please call the case.

9 THE REGISTRAR: Good afternoon, Your Honours. This is case number

10 IT-98-29-A, the Prosecutor versus Stanislav Galic.

11 JUDGE POCAR: Thank you.

12 Mr. Galic, can you clearly hear and understand the translation?

13 THE APPELLANT: [Interpretation] Good afternoon, Your Honours.

14 Yes, I can clearly hear and understand the interpretation. Thank you.

15 JUDGE POCAR: Thank you.

16 I would now like to hear the appearances for the parties.

17 First the Defence.

18 MS. PILIPOVIC: [Interpretation] Good afternoon, Your Honours.

19 Appearing for Mr. Stanislav Galic, Mara Pilipovic, Stephane Piletta-Zanin,

20 and our case manager Aleksandar Momirov appearing for General Galic.

21 Thank you.

22 JUDGE POCAR: Thank you.

23 Now for the Prosecution.

24 MS. BRADY: Good afternoon, Your Honours. Helen Brady appearing

25 on behalf of the Prosecution. With me today, Michelle Jarvis and Anna

1 Kotzeva. Thank you.

2 JUDGE POCAR: Thank you.

3 As the registrar announced, the case on our agenda today is

4 Prosecutor versus Stanislav Galic. In accordance with the Scheduling

5 Order issued on 16 November 2006, today the Appeals Chamber will deliver

6 its judgement.

7 Following the practice of the International Tribunal, I will not

8 read out the text of the judgement except for the disposition. In fact, I

9 will summarise the issues on appeal and the findings of the Appeals

10 Chamber. I emphasise that this summary is not part of the written

11 judgement, which is the only authoritative account of the Appeals

12 Chamber's rulings and reasons. Copies of the written judgement will be

13 made available to the parties at the conclusion of this hearing.

14 This case concerns the events that occurred in the city of

15 Sarajevo, Bosnia and Herzegovina, between 10 September 1992 and 10 August

16 1994. During that period, Stanislav Galic was the de jure Sarajevo

17 Romanija Corps commander, his superiors being the Chief of Staff of the

18 Army of the Serbian republic, General Ratko Mladic, and the supreme

19 commander of the VRS, Radovan Karadzic.

20 On 5 December 2003, the Trial Chamber found Galic guilty of acts

21 of violence, the primary purpose of which was to spread terror among the

22 civilian population, a violation of the laws or customs of war, as set

23 forth in Article 51 of Additional Protocol I to the Geneva Conventions of

24 1949.

25 Count 1, murder as a crime against humanity through sniping.

1 Count 2, inhumane acts other than murder as a crime against

2 humanity through sniping.

3 Count 3, murder as a crime against humanity through shelling.

4 Count 5, inhumane acts other than murder as crimes against

5 humanity through shelling.

6 Count 6.

7 Galic was sentenced to a single sentence of 20 years'

8 imprisonment. Both the Prosecution and Galic appealed the decision.

9 Galic filed his notice of appeal on 4 May 2004, containing 19 grounds of

10 appeal, alleging various errors of law and of fact. The Prosecution filed

11 its notice of appeal on 18 December 2003. It appealed the sentence

12 against Galic, arguing that it was manifestly inadequate in light of the

13 gravity of the crimes and his degree of criminal responsibility. The

14 Appeals Chamber heard oral submissions of the parties regarding this

15 appeal on 29 August 2006.

16 I will now briefly address the grounds of appeal, starting with

17 Galic's grounds of appeal, followed by the Prosecution's appeal.

18 In his first ground of appeal, Galic argues that the Trial Chamber

19 made an error of law invalidating the judgement in requiring that if he

20 chose to testify, he would do so before the Defence called its expert

21 witnesses. Galic claims that this ruling violated his right to a fair

22 trial. The Appeals Chamber finds that Trial Chambers have discretion

23 pursuant to Rule 90(F) of the Rules to determine when an accused may

24 testify in his own defence. However, this power must be exercised with

25 caution to ensure that the rights of the accused are respected. In the

1 present case, the Trial Chamber only required that Galic testify, if he so

2 desired, before the expert witnesses did. The Trial Chamber articulated

3 the reason for its decision. It determined that ascertainment of the

4 truth would be best served if all fact witnesses, including Galic,

5 testified before the expert witnesses, so that the experts could base

6 their testimony on all the facts adduced including those adduced by Galic.

7 In addition, if Galic testified before the experts, the Trial

8 Chamber said that he would be able to apply to give further testimony

9 after these expert testimonies, so that any opportunity denied to him to

10 testify in relation to all the evidence adduced in the trial would have

11 been mitigated by this further opportunity. In these circumstances, the

12 Appeals Chamber is not satisfied that the conditions placed by the Trial

13 Chamber on Galic's right to testify on his own behalf unreasonably

14 interfered with his right to testify, thereby infringing his right to a

15 fair trial. Accordingly, Galic's first ground of appeal is dismissed.

16 In his second ground of appeal, Galic challenges the fairness of

17 the International Tribunal's procedure for determining applications for

18 the disqualification of a Judge. The disqualification procedure of a

19 Judge is governed by Rule 15(B) of the Rules. This Rule provided, at the

20 time relevant to this appeal, that the disqualification and withdrawal of

21 a Judge should be referred to the Presiding Judge of the Chamber, who

22 shall confer with the Judge in question. After such consultation, Rule

23 15(B) of the Rules envisaged that the Presiding Judge had to decide

24 whether it was necessary to refer the matter to the bureau. Even if the

25 Presiding Judge decided that it was not necessary to do so, the President

1 had to refer the matter to the bureau if the decision of the Presiding

2 Judge not to withdraw a Judge was challenged by the accused.

3 While no interlocutory appeal to the Appeals Chamber is available

4 from a decision of the Presiding Judge pursuant to Rule 15(B) of the Rules

5 and there is no interlocutory appeal from decisions of the bureau, the

6 Appeals Chamber nevertheless notes that, upon referral of a motion for

7 disqualification to the bureau, the bureau reviewed the motion for

8 disqualification de novo. Hence, while there is no interlocutory appeal

9 of a decision under Rule 15(B) of the Rules, the role of the bureau

10 effectively provided a second course to an accused to have his arguments

11 for disqualification reconsidered in full by an independent panel of

12 Judges. Further, the fact that a decision on disqualification cannot be

13 appealed at trial, does not necessarily mean that the impartiality of a

14 Judge cannot be considered in an appeal from a judgement.

15 The Appeals Chamber therefore finds that the lack of an

16 interlocutory appeal from a decision on disqualification of a Judge

17 pursuant to Rule 15(B) of the Rules does not violate an accused's right to

18 a fair trial.

19 In this ground of appeal, Galic also claimed that the impartiality

20 and the appearance of impartiality of Judge Orie, the Presiding Judge in

21 his trial, was compromised by the Judge 's confirmation of an indictment

22 against Ratko Mladic. The Appeals Chamber finds that Galic's claim in

23 relation to Judge Orie's alleged compromised impartiality is not

24 supported. Galic's second ground of appeal is therefore dismissed.

25 Under his third ground of appeal, Galic submits that the Trial

1 Chamber erred in law by determining in its on-site visit decision of 4th

2 of February, 2003, that it was not necessary to travel to Sarajevo to view

3 the alleged crime sites. Managerial decisions, such as whether to make a

4 site visit, are left to the discretion of the Trial Chamber. The Appeals

5 Chamber therefore examined whether the Trial Chamber abused its discretion

6 in concluding that denying Galic's motion for an on-site visit did not

7 affect his rights or its ability to decide upon the case against him. In

8 light of Galic's submissions in his appeal brief and at the appeal

9 hearing, the Appeals Chamber finds that Galic has not demonstrated that

10 the Trial Chamber abused its discretion in denying his motion. Galic's

11 third ground of appeal is dismissed.

12 I now turn to Galic's third, fourth, and 11th ground of appeal.

13 Under grounds four and 13, Galic makes arguments pertaining to

14 additional material disclosed by the Prosecution after the close of the

15 trial which, he contends, could have been exculpatory evidence under Rule

16 68 of the Rules. The Appeals Chamber notes that Galic's arguments under

17 these grounds of appeal were dealt with by the Trial Chamber in the trial

18 judgement. As Galic failed in these grounds to establish that a remedy on

19 appeal was warranted, these grounds of appeal are dismissed.

20 With regard to Galic's argument under ground 11, that the Trial

21 Chamber erred in the methodology it used for its appraisal of evidence and

22 testimonies, in that it inferred from general evidence of incidents that

23 particular incidents were proven, the Appeals Chamber finds that the trial

24 judgement shows that the Trial Chamber made clear that it assessed the

25 evidence for each of the scheduled incidents.

1 With regard to his argument under that ground that the Trial

2 Chamber failed to properly assess testimonies of UNPROFOR witnesses, the

3 Appeals Chamber notes that in his appeal brief, Galic pointed to the

4 evidence of many of those witnesses but failed to refer to specific parts

5 of their evidence. He only alleges broadly that their evidence amounted

6 to assumptions or that they did not refer to any specific incident, but

7 does not provide concrete examples in support. The only specific

8 reference is found in the Defence reply brief, in which he identifies the

9 evidence of Witness Harding as illustrative of the ambiguity of evidence

10 given by these witnesses. However, Galic fails to show that any findings

11 of fact became unreasonable in the absence of Witness Harding's testimony.

12 With regard to Galic's argument that the Trial Chamber erred when

13 it found him guilty of crimes which form part of a single campaign

14 committed in a geographically limited territory over an uninterrupted

15 period of time, whereas the Total Exclusion Zone agreement was efficiently

16 implemented in Sarajevo in February 1994 and the shelling of Sarajevo was,

17 in his words, practically rendered impossible, the Appeals Chamber notes

18 that, contrary to Galic's claim, although no scheduled incident of

19 shelling concerned the period prior to June 1993, abundant evidence was

20 nevertheless adduced that the shelling was fierce in 1992 and 1993.

21 Further, the finding of the Trial Chamber concerned not only shelling

22 incidents, but also sniping incidents, for which, in addition to Scheduled

23 Sniping Incident number two of 13 December 1992, a plethora of evidence

24 was also adduced. For these reasons and those set out in the judgement,

25 Galic's 11th ground of appeal is dismissed.

1 I will now address in greater detail Galic's fifth, seventh, and

2 16th grounds of appeal, concerning the crime charged under Count 1 of the

3 indictment pursuant to Article 3 of the Statute and on the basis of

4 Article 51(2) of Additional Protocol I and Article 13(2) of Additional

5 Protocol II, that is the crime of acts or threats of violence, the primary

6 purpose of which is to spread terror among the civilian population. Under

7 these grounds, the judgement only envisages such crime as encompassing the

8 intent to spread terror when committed by combatants in a period of armed

9 conflict. Therefore, the judgement does not envisage any other form of

10 terror.

11 Under his fifth ground of appeal, Galic argues that he was

12 convicted for an offence he was not charged with. However, the Appeals

13 Chamber finds that the Trial Chamber merely identified the elements that

14 needed to be established for the crime to be made out. While the

15 Prosecution initially envisaged in its description of the charges in the

16 indictment that the crime of terror among the civilian population

17 comprised actual infliction of terror, the Trial Chamber was acting within

18 the confines of its jurisdiction in determining that the elements of this

19 crime do not comprise the actual infliction of terror on that population.

20 Further, and contrary to what Galic argues, he was properly informed of

21 the nature and cause of the charges against him so that he was able to

22 adequately prepare his defence. The Appeals Chamber therefore dismisses

23 Galic's fifth ground of appeal.

24 Under his 16th ground of appeal, Galic argues that the purported

25 re-qualification of the crime of acts or threats of violence, the primary

1 purpose of which is to spread terror among the civilian population,

2 violates the principle of in dubio pro reo. In the present case, the

3 question whether there could have been doubt as to the culpability of

4 Galic is dependent on whether actual infliction of terror is an element of

5 the offence charged under Count 1 or not. The Appeals Chamber finds that

6 the actual infliction of terror is not an element of the crime of acts or

7 threats of violence, the primary purpose of which is to spread terror

8 among the civilian population, as charged under Count 1 of the indictment.

9 Therefore, Galic's argument that the principle of in dubio pro reo was

10 violated is moot.

11 I now turn to Galic's seventh ground of appeal: That is whether

12 the crime of acts or threats of violence, the primary purpose of which is

13 to spread terror among the civilian population is a crime punishable under

14 Article 3 of the Statute. Under that ground, Galic makes several

15 arguments, which I will address in turn.

16 His first argument is that the Trial Chamber erred in considering

17 treaty law to be sufficient to give jurisdiction to the Tribunal, which

18 may only exercise jurisdiction over crimes under customary international

19 law. In that respect, the Appeals Chamber recalls that, when first seized

20 of the issue of the scope of its jurisdiction ratione materiae - in the

21 Tadic jurisdiction decision of 2 October 1995 - the International Tribunal

22 interpreted its mandate as applying not only to breaches of international

23 humanitarian law based on customary international law but also to those

24 based on international instruments entered into by the conflicting

25 parties. However, the Appeals Chamber also notes that, while conventional

1 law can form the basis for the International Tribunal's jurisdiction, an

2 analysis of the jurisprudence of the International Tribunal demonstrates

3 that Judges have consistently endeavoured to satisfy themselves that the

4 crime charged in the indictments before them were crimes under customary

5 international law at the time of their commission and were sufficiently

6 defined under that body of law. Galic's argument is therefore dismissed.

7 Galic's second argument under ground seven is that the 22nd May

8 1992 agreement was not binding on the parties. The Appeals Chamber does

9 not consider it necessary to address this argument on the ground that it

10 is satisfied that the prohibition of terror against the civilian

11 population, as enshrined in Article 51(2) of Additional Protocol I and

12 Article 13(2) of Additional Protocol II, was part of customary

13 international law from the time of its inclusion in those treaties.

14 With regard to the prohibition of terror against a civilian

15 population in customary international law, the Appeals Chamber confirmed

16 the Trial Chamber's finding that the prohibition of terror, as contained

17 in the second sentences of both Article 51(2) of Additional Protocol I and

18 Article 13(2) of Additional Protocol II, amounts to a specific prohibition

19 within the general, customary, prohibition of attacks on civilians. The

20 principles underlying the prohibition of attacks on civilians, namely, the

21 principle of distinction and protection, have a long-standing history in

22 international humanitarian law, incontrovertibly form the basic foundation

23 of international humanitarian law and constitute intransgressible

24 principles of international customary law. As the Appeals Chamber has

25 held in previous decisions, the conventional prohibition on attacks on

1 civilians contained in Articles 51 of Additional Protocol I and Additional

2 Protocol II constitutes customary international law.

3 With regard to the criminalisation of the prohibition of terror

4 against the civilian population, the Appeals Chamber finds by majority,

5 Judge Schomburg dissenting, that customary international law imposed

6 individual criminal liability for violations of the prohibition of terror

7 against the civilian population, as enshrined in Article 51(2) of

8 Additional Protocol I and Article 13(2) of Additional Protocol II, from at

9 least the period relevant to the indictment.

10 I will now turn to the elements of the crime of acts or threats of

11 violence, the primary purpose of which is to spread terror among the

12 civilian population. Having found that the prohibition on terror against

13 the civilian population in the Additional Protocols was declaratory of

14 customary international law, the Appeals Chamber based its analysis of the

15 elements of the crime under consideration under Count 1 of the indictment

16 on the definition found therein: "Acts or threats of violence, the

17 primary purpose of which is to spread terror among the civilian

18 population." On that basis, the Appeals Chamber finds the following.

19 With regard to the actus reus, the Appeals Chamber finds that the

20 crime or acts or threats of violence, the primary purpose of which is to

21 spread terror among the civilian population, can comprise attacks or

22 threats of attacks against the civilian population. Those acts or threats

23 shall not however be limited to direct attacks against civilians or

24 threats thereof, but may include indiscriminate or disproportionate

25 attacks or threats thereof. The nature of the acts or threats of violence

1 directed against the civilian population can vary. The primary concern is

2 that those acts or threats of violence be committed with the specific

3 intent to spread terror among the civilian population. Further, the crime

4 of acts or threats of violence, the primary purpose of which is to spread

5 terror among the civilian population, is not a case in which an explosive

6 device was planted outside of an ongoing military attack. Rather, and

7 following the language of the indictment, the crime under consideration

8 concerns cases of extensive trauma and psychological damage being caused

9 by attacks which were designed to keep the inhabitants in a constant state

10 of terror. Such extensive trauma and psychological damage form part of

11 the acts or threats of violence.

12 With regard to the mens rea and result requirement, the Appeals

13 Chamber, relying on the plain language of Article 51(2) of Additional

14 Protocol I, on its object and purpose and on the travaux preparatoires to

15 Additional Protocol I, finds that actual terrorisation of the civilian

16 population is not an element of the crime. The mens rea of the crime of

17 acts or threats of violence, the primary purpose of which is to spread

18 terror among the civilian population, is composed of the specific intent

19 to spread terror among the civilian population.

20 Further, the Appeals Chamber finds that a plain reading of Article

21 51(2) suggests that the purpose of the unlawful acts or threats to commit

22 such unlawful acts need not be the only purpose of the acts or threats of

23 violence. The fact that other purposes may have co-existed simultaneously

24 with the purpose of spreading terror among the civilian population would

25 not disprove this charge, provided that the intent to spread terror among

1 the civilian population was principal among the aims. Such intent can be

2 inferred from the circumstances of the acts or threats, that is from their

3 nature, manner, timing, and duration.

4 I now turn to Galic's last argument under ground seven that he did

5 not intend to spread terror among the civilian population. In that

6 respect, the Appeals Chamber notes that the Trial Chamber relied on a

7 plethora of evidence to demonstrate that the terrorisation of the civilian

8 population was the primary purpose of the campaign of sniping and shelling

9 and that Galic ordered the commission of the underlying acts with the same

10 specific intent. For the reasons given in the judgement, the Appeals

11 Chamber finds that Galic has not demonstrated that no reasonable trier of

12 fact could have reached the Trial Chamber's conclusion that he had the

13 intent to spread terror among the civilian population. Therefore, the

14 Appeals Chamber dismisses Galic's seventh ground of appeal.

15 I will now address Galic's argument under his sixth ground of

16 appeal, that the Trial Chamber erred in law with respect to the crime of

17 attack on civilian. First, Galic makes several arguments pertaining to

18 the applicability of Article 3 of the Statute to the count of attack on

19 civilians. In that respect, the Appeals Chamber finds that Galic has not

20 established that the Trial Chamber committed an error on a question of law

21 invalidating the decision. The Trial Chamber was bound to apply the ratio

22 decidendi of the relevant Appeals Chamber decisions, starting with the

23 Tadic jurisdiction decision and the analysis of the Tadic conditions

24 contained therein, which it did. Galic proffers no novel submissions as

25 to why the interests of justice would require the Appeals Chamber to

1 depart from its interpretation of Article 3 of the Statute. His argument

2 therefore fails.

3 Second, Galic makes several arguments regarding the Trial

4 Chamber's analysis of the elements of the crime of attack on civilians as

5 a violation of the laws or customs of war. With regard to Galic's

6 submissions that the Trial Chamber erred in finding that the targeting of

7 civilians cannot be justified by military necessity, the Appeals Chamber

8 has previously emphasised that there is an absolute prohibition on the

9 targeting of civilians in customary international law, and that the

10 prohibition against attacking civilians and civilian objects may not be

11 derogated from because of military necessity. Galic's argument is

12 accordingly dismissed.

13 With regard to Galic's contention that the Trial Chamber erred in

14 law in holding that indiscriminate attacks, that is to say, attacks which

15 strike civilians or civilian objects and military objectives without

16 distinction, may qualify as direct attacks against civilians, the Appeals

17 Chamber notes that the Trial Chamber did not hold that such attacks always

18 amount to direct attacks, but rather that they may qualify as such. The

19 Appeals Chamber finds that the impugned finding does not conflate the two

20 crimes, but rather supports the view that a direct attack can be inferred

21 from the indiscriminate character of the weapon used. In principle, the

22 Trial Chamber was entitled to determine on a case-by-case basis that

23 indiscriminate character of an attack can assist it in determining whether

24 the attack was directed against the civilian population. Galic's argument

25 is accordingly dismissed.

1 With regard to Galic's argument that the Trial Chamber erred in

2 law in holding that certain apparently disproportionate attacks may give

3 rise to the inference that civilians were actually the object of attack,

4 the Appeals Chamber notes that the Trial Chamber made clear that such

5 inference had to be determined on a case-by-case basis in light of the

6 available evidence. The Trial Chamber's finding that disproportionate

7 attacks may give rise to the inference of direct attacks on civilians was

8 therefore a justified pronouncement on the evidentiary effects of certain

9 findings, not a conflation of different crimes. The Trial Chamber clearly

10 stated that it limited itself to attacks on civilians pursuant to Article

11 51(2) of Additional Protocol I, which only contemplates direct attacks

12 against the civilian population. The definition it adopted of the offence

13 is equally clear. No mention is made of indiscriminate or

14 disproportionate attacks as the basis for conviction. Accordingly, this

15 part of Galic's ground of appeal is dismissed.

16 With regard to Galic's argument that the Trial Chamber incorrectly

17 interpreted the law when it held that the presence of individual

18 combatants within the population does not change its civilian character,

19 the Appeals Chamber finds that the jurisprudence of the International

20 Tribunal in this regard is clear. The presence of individual combatants

21 within the population attacked does not necessarily change the fact that

22 the ultimate character of the population remains, for legal purposes, a

23 civilian one. While the Trial Chamber may have appeared to have applied a

24 stricter test than that established by the jurisprudence of the Tribunal,

25 by its footnote references, the Trial Chamber acknowledged the nuances of

1 its position. The Appeals Chamber therefore finds that the Trial Chamber

2 was correct in its interpretation of the law, as it recognised the

3 variable considerations with respect to determining the characterisation

4 of a given population. Galic's argument is accordingly dismissed.

5 Lastly, with regard to Galic's argument that the Trial Chamber

6 erred in law, by including, as a subjective element of the crime of attack

7 on civilians, the concept of negligence or some other attitude of the

8 person committing the action or anything other than the wish to cause the

9 actual consequence of the action, the Appeals Chamber notes that the Trial

10 Chamber in its discussion of the mens rea of the crime at issue, found

11 that the perpetrator must undertake the attack wilfully. The Trial

12 Chamber relied on the ICRC commentary to Article 85 of Additional Protocol

13 I, which defines intent for the purposes of Article 51(2) and clearly

14 distinguishes recklessness, that is the attitude of an agent who, without

15 being certain of a particular result, accepts the possibility of its

16 happening, from negligence, which describes a person who acts without

17 having his mind on the act or its consequences. The Trial Chamber's

18 reasoning in this regard is correct and Galic offers no support for his

19 contention that the Trial Chamber committed an error of law. Thus, to the

20 extent that Galic impugns this specific finding, his argument is without

21 merit and accordingly dismissed. So Galic's sixth ground of appeal is

22 dismissed.

23 Let me now turn to Galic's eighth ground of appeal, alleging

24 errors of law concerning crimes under Article 5 of the Statute. Galic

25 first argues that the Trial Chamber erred in its definition of civilians

1 in the context of an attack on a civilian population. The Trial Chamber

2 held, when considering the chapeau requirement of a civilian population,

3 that the definition of a civilian is expansive and includes individuals

4 who at one time performed acts of resistance, as well as persons hors de

5 combat when the crime was perpetrated. The Trial Chamber did not intend

6 to give a definition of an individual civilian; indeed, it would not

7 necessarily be correct to state, as the Trial Chamber's wording seems to

8 suggest, that a person hors de combat is a civilian in the context of

9 international humanitarian law. The Appeals Chamber understands the Trial

10 Chamber to reiterate well-established jurisprudence regarding the chapeau

11 element of civilian population. As such, the Appeals Chamber has

12 previously held that the presence within a population of members of

13 resistance groups or former combatants who have laid down their arms does

14 not alter its civilian characteristic. Likewise, the presence of soldiers

15 does not necessarily deprive a civilian population of its civilian

16 character, nor does the presence of persons hors de combat. Galic's

17 argument in this regard is therefore rejected.

18 Galic also argues that he did not have knowledge of the attacks on

19 civilians, but in support of merely reiterates arguments made at trial and

20 does not present argumentation as to why his claim should succeed on

21 appeal. As the related findings of fact are addressed by Galic in greater

22 detail in grounds 17 and 18 of his Defence appeal brief, his arguments

23 here have also be dealt with under those grounds.

24 I will now address Galic's arguments under the same ground

25 pertaining to murder and inhumane acts. With regard to his claim that an

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1 act cannot constitute murder if it consists of an omission, the Appeals

2 Chamber recalls that murder can be committed through an act or omission,

3 and that the commission of a positive act is not an absolute requirement

4 of criminal responsibility. The same applies to the identical argument

5 Galic makes with regard to inhumane acts. With regard to his argument

6 that an act cannot constitute murder if the act of killing is carried out

7 by another person, the Appeals Chamber notes that the Statute expressly

8 contemplates attaching criminal responsibility to an accused for the acts

9 of another person, and the International Tribunal has done so on numerous

10 occasions. Galic's argument is therefore rejected.

11 With regard to Galic's arguments pertaining to the mens rea

12 requirement of murder, that the Trial Chamber referred to the wrong

13 standard, the Appeals Chamber notes that Galic was not convicted for

14 committing murder, but for ordering murder under Article 7(1) of the

15 Statute, which only requires that he was aware of the substantial

16 likelihood that murder would be committed in the execution of his orders.

17 Consequently, there is no reason for the Appeals Chamber to consider on

18 their merits Galic's arguments pertaining to the mens rea required for

19 committing murder. The same applies to his argument pertaining to the

20 mens rea for inhumane acts. This part of Galic's ground of appeal is

21 dismissed. Accordingly, the Appeals Chamber dismisses Galic's eighth

22 ground of appeal.

23 I now turn to Galic's ninth ground of appeal. First, the Appeals

24 Chamber dismisses - based on its constant jurisprudence - Galic's argument

25 that an accused cannot be cumulatively charged with different crimes on

1 the basis of the same set of acts. With regard to his contention that the

2 Trial Chamber erred in law by entering convictions under Article 3 of the

3 Statute, acts or threat of violence, the primary purpose of which is to

4 spread terror among the civilian population and Article 5 of the Statute,

5 murder and inhumane acts, for the same acts, the Appeals Chamber concurs

6 with the Trial Chamber that convictions for the same conduct under

7 Articles 3 and 5 of the Statute are permissible since those Articles

8 require proof of distinct elements. With regard to his claim that the

9 Trial Chamber erred when entering convictions under Article 5(a) of the

10 Statute, murder, and Article 5(i) of the Statute, inhumane acts, for the

11 same conduct when that conduct resulted in the death of the victim, the

12 Appeals Chamber finds that Galic does not demonstrate that the Trial

13 Chamber convicted him twice for injuring and killing the same victims.

14 Galic's ninth ground of appeal is dismissed.

15 I will now turn to Galic's tenth ground of appeal, regarding

16 certain holdings of the Trial Chamber made in the context of the law

17 relating to determining criminal responsibility under Articles 7(1) and

18 7(3) of the Statute. With regard to Galic's challenges to the Trial

19 Chamber's holding that the proof of all forms of criminal responsibility

20 can be proved by direct or circumstantial evidence, the Appeals Chamber

21 notes that it is well established that facts can be proven by either

22 direct or circumstantial evidence.

23 With regard to Galic's assertion that acts of persons accused

24 under Article 7(1) of the Statute may not be acts committed by culpable

25 omission and that the Trial Chamber made an erroneous legal finding in

1 this regard, the Appeals Chamber affirms that the omission of an act,

2 where there is a legal duty to act, can lead to individual criminal

3 responsibility under Article 7(1) of the Statute. In the present case,

4 the Trial Chamber did not find Galic guilty for having ordered the crimes

5 by his failure to act or culpable omissions. That is, it did not infer

6 from the evidence the fact that he omitted an act and that this omission

7 constituted an order. Rather, where the Trial Chamber mentions failures

8 to act, it took those failures into account as circumstantial evidence to

9 prove the mode of liability of ordering. The Appeals Chamber thus

10 concludes that the mode of liability of ordering can be proven, like any

11 other mode of liability, by circumstantial or direct evidence, taking into

12 account evidence of acts or omissions of the accused. Whether or not the

13 Trial Chamber could have inferred from that evidence adduced at trial that

14 Galic had ordered the crimes is a question of fact which is addressed as

15 part of his 18th ground of appeal.

16 With regard to Galic's argument that the Trial Chamber erred in

17 its assessment of the had-reason-to-know standard under Article 7(3) of

18 the Statute, the Appeals Chamber notes that the jurisprudence of the

19 International Tribunal indicates that the had-reason-to-know standard will

20 only be satisfied if information was available to the superior which would

21 have put him on notice of offences committed by his subordinates.

22 However, the information in question need not, as Galic argues, have the

23 form of specific reports submitted pursuant to a monitoring system and

24 does not need to provide specific information about unlawful acts

25 committed or about to be committed.

1 With regard to Galic's challenge to concurrent application of

2 Articles 7(1) and 7(3) of the Statute, the Appeals Chamber finds that,

3 contrary to his assertion, the Trial Chamber did not hold that concurrent

4 convictions under Articles 7(1) and 7(3) of the Statute are possible, but

5 rather, that the facts of any given case may satisfy both articles, in

6 which case a Trial Chamber may then choose between them. As noted in the

7 Blaskic appeal judgement, a conviction should be entered under Article

8 7(1) of the Statute only while treating the accused's superior position as

9 an aggravating factor in sentencing. Accordingly, there was no error on

10 the part of the Trial Chamber. Galic's tenth ground of appeal is

11 dismissed.

12 I now turn to Galic's 12th ground of appeal, in which he argues

13 that the issue of collateral damage was not examined by the Trial Chamber.

14 Under this ground, the Appeals Chamber notes that Galic did not refer to

15 any specific finding of the trial judgement to support his argument, and

16 as a result, did not meet his obligation to clearly set out his ground of

17 appeal. Therefore, the Appeals Chamber did not engage in an assessment of

18 each scheduled incident, but rather, determined whether the Trial Chamber

19 correctly understood its obligations in assessing the legality of the

20 attacks and the evidence in respect thereof. The Appeals Chamber is

21 satisfied that the Trial Chamber correctly enunciated the applicable law.

22 Further, for the reasons set out in the judgement, the Appeals Chamber

23 finds that the methodology used by the Trial Chamber to assess the

24 legality of the attacks for the scheduled and non-scheduled incidents is

25 in accordance with its enunciation of the applicable law. Galic's 12th

1 ground of appeal is accordingly dismissed.

2 I will now turn briefly to Galic's 14th ground of appeal, in which

3 he argues that the Trial Chamber erred in either wrongly defining or

4 failing to define certain terms. For the reasons set out in the

5 judgement, the Appeals Chamber finds that Galic does not explain why a

6 specific definition was required or how the Trial Chamber erred by not

7 providing a definition. Moreover, he fails to explain how these alleged

8 errors would have changed the outcome of the trial judgement. The 14th

9 ground of appeal is therefore dismissed.

10 In his 15th ground of appeal, Galic challenges the Trial Chamber's

11 approach to the evaluation of evidence, particularly in relation to the

12 finding of a campaign of attacks against civilians. Galic first alleges

13 legal errors in the Trial Chamber's approach to finding the existence of a

14 campaign. The Appeals Chamber, however, for the reasons set out in the

15 judgement, finds no error in the Trial Chamber's approach. Second, Galic

16 disputes the Trial Chamber's conclusion on 12 of the 23 scheduled sniping

17 incidents and three of the five shelling incidents, arguing that they

18 could not have been proved beyond a reasonable doubt when the dissent of

19 Judge Nieto-Navia expresses such reasonable doubt. The Appeals Chamber,

20 however, finds that the presence of a dissenting opinion on questions of

21 fact does not negate the validity of a trial judgement since verdicts at

22 trial need only to be reached by a majority of the Trial Chamber. By

23 merely pointing to the existence of a dissenting opinion, Galic fails to

24 meet his burden on appeal because he has not demonstrated the

25 unreasonableness of the majority's assessment of the evidence.

1 Consequently, the Appeals Chamber dismisses this part of Galic's grounds

2 of appeal. In the remainder of his 15th ground of appeal, Galic submits

3 numerous allegations of factual error in the Trial Chamber. His

4 submissions are summarised and discussed in the judgement. For the most

5 part, they consist of bare assertions that are dismissed without

6 substantial reasoning, as they do not meet the requirements of appeal.

7 Galic's 15th ground of appeal is so dismissed.

8 In his 17th ground of appeal, Galic alleges various erroneous

9 factual findings and evaluation of evidence with regard to the Trial

10 Chamber's findings related to the alleged campaign of sniping and shelling

11 against the civilian inhabitants of Sarajevo. For the reasons set out in

12 the judgement, Galic's arguments in that respect are dismissed and I will

13 only address Galic's arguments pertaining to the attacks on the Markale

14 Market and the Kosevo Hospital.

15 With regard to the Markale Market incident, the Appeals Chamber

16 notes the complexity of the testimony before the Trial Chamber, with a

17 number of technical factors coming into play, experts providing different

18 conclusions, and uncertainty as to the accuracy of the different findings.

19 For the reasons set out in the judgement, the Appeals Chamber finds the

20 Trial Chamber's findings, with regard to the bearing of the shell, the

21 angle of descent, and the depth of the crater are not findings that no

22 reasonable Trial Chamber could have made. The Appeals Chamber however

23 holds that the Trial Chamber was incorrect to find that the shell was

24 deliberately aimed at the Markale Market but that, in any case, this

25 shelling incident was an example of shelling that deliberately targeted

1 civilians. As a result, the Appeals Chamber does not overturn Galic's

2 conviction for that incident.

3 I now turn to Galic's argument that it was not unlawful for SRK

4 forces to fire at the Kosevo Hospital because ABiH forces were using it as

5 a military base. After determining what restrictions international

6 humanitarian law establishes, as set out in the Fourth Geneva Convention

7 and Additional Protocol thereto, regarding attacks on hospitals, and

8 having considered the various findings of the Trial Chamber, the Appeals

9 Chamber finds that the Trial Chamber was incorrect not to find that a

10 number of SRK attacks were attacks on legitimate military targets.

11 However, there is also evidence revealing that some of the SRK attacks,

12 either because of their timing or because of the weaponry deployed, cannot

13 be construed as attacks on a legitimate military target. Therefore, when

14 applying the correct standard of law, the Appeals Chamber finds that some,

15 but not all, of the attacks on the hospital by the SRK forces constituted

16 examples of the campaign of attacks on civilians. Other attacks were

17 attacks on a legitimate military target. The Trial Chamber was thus only

18 partially incorrect and its conclusion is revised accordingly. The 17th

19 ground is dismissed.

20 I now turn to Galic's 18th ground of appeal, in which he points to

21 numerous alleged errors of facts pertaining to his role and criminal

22 responsibility. Considering the number of allegations made by Galic under

23 that ground, I will only address the following here.

24 With regard to Galic's arguments in relation to the Trial

25 Chamber's findings on his control over sniping, shelling activity, and

1 control over SRK weaponry, the Appeals Chamber finds, for the reasons set

2 out in the judgement, that Galic failed to demonstrate that no reasonable

3 trier of fact could have reached the same conclusions as the Trial Chamber

4 did.

5 With regard to Galic's argument that he was not in a position to

6 punish his subordinates, the Appeals Chamber finds, that in Galic's own

7 words, he had the authority to respond to illegal acts on the part of his

8 subordinates. Thus, Galic has not shown that no reasonable trier of fact

9 could have come to the same conclusion as the Trial Chamber in finding

10 that: "The Defence does not deny that General Galic had the ability to

11 prevent or punish commissions of crimes, but argues that he did not have

12 the need to do so."

13 With regard to Galic's argument that he was not aware that

14 unlawful sniping and shelling of civilians were taking place in the city

15 of Sarajevo and its surroundings, the Appeals Chamber finds, for the

16 reasons given in the judgement, that Galic fails to demonstrate that no

17 reasonable trier of fact could have reached the same conclusion as the

18 Trial Chamber did. Protests were delivered to him in person, to his

19 subordinates, and Galic does not point to any part of the trial judgement

20 where the Trial Chamber erred in this regard.

21 With regard to Galic's claim that artillery was not used

22 unlawfully, the Appeals Chamber notes that he ignores the plethora of

23 evidence of unlawful sniping and shelling activities. Finally, with

24 regard to the reasonableness of the measures taken by Galic, the Appeals

25 Chamber notes that the Trial Chamber did consider the evidence indicating

1 that he conveyed instructions to respect the 1949 Geneva Conventions, but

2 that it also found that those instructions instilled an inadequate and

3 erroneous understanding of the obligations under the Conventions. The

4 Appeals Chamber does not find that no reasonable trier of fact could have

5 come to the same conclusions as that of the Trial Chamber. Accordingly,

6 Galic's 18th ground of appeal is dismissed.

7 I now turn to the grounds of appeal of Galic and the Prosecution

8 concerning the sentence of 20 years' imprisonment imposed by the Trial

9 Chamber.

10 Under his 19th ground of appeal, Galic argues that the Trial

11 Chamber erroneously applied the law when determining his sentence and that

12 a more lenient sentence should have been imposed. With regard to Galic's

13 argument that a sentence of 20 years' imprisonment is the highest possible

14 sentence that can be pronounced by the International Tribunal, due to the

15 fact that the sentencing law and practices of the former Yugoslavia

16 envisage maximum prison sentences of 20 years, the Appeals Chamber recalls

17 that the International Tribunal, while bound to take the sentencing law

18 and practice of the former Yugoslavia into account, does not have to

19 follow it. The Appeals Chamber also finds that, contrary to Galic's

20 argument, the Trial Chamber correctly identified the relevant provisions

21 of the SFRY Criminal Code and correctly -- incorrectly found that the

22 crimes he committed would have attracted the harshest of sentences in the

23 former Yugoslavia.

24 With regard to Galic's argument that the Trial Chamber used his

25 position of VRS corps commander, both to accomplish his responsibility for

1 the crimes and to aggravate his sentence, the Appeals Chamber finds that

2 while the mode of liability of ordering necessarily entails that the

3 person giving the order has a position of authority, the level of

4 authority may still play a role in sentencing as it is not an element of

5 the mode of liability of ordering than an accused is high in the chain of

6 command and thus wields a high level of authority. The Trial Chamber did

7 not regard, as an aggravating circumstance, the fact that Galic had the

8 authority to give orders; rather, it took into account other factors that

9 emanate from his position of authority as commander and found that he

10 repeatedly breached his public duty from this very senior position,

11 thereby abusing his position of authority. This part of Galic's ground of

12 appeal is dismissed.

13 With regard to Galic's argument that the Trial Chamber should have

14 taken into account as a mitigating circumstance that he received his

15 command of the SRK units practically in the state of chaos, the Appeals

16 Chamber considers that as a military commander, Galic had the authority

17 and competence to order lawful combat operations, and it was his duty to

18 work towards an effective chain of command. It is therefore not an

19 argument the Trial Chamber was bound to take into account. With respect

20 to the related factor concerning the dismantling of the paramilitary

21 units, the Appeals Chamber notes that the Trial Chamber referred to the

22 arguments put forward by Galic in this regard, and thus considered this

23 factor. It was perfectly within its discretion not to take into account

24 in mitigation of the sentence, and Galic has not demonstrated that the

25 Trial Chamber ventured outside its discretionary framework.

1 With regard to Galic's submission that the conditions of urban

2 warfare considerably lessen his criminal responsibility, the Appeals

3 Chamber notes that the Trial Chamber clearly considered this factor.

4 Further, Galic failed to put forward this argument at trial as a

5 mitigating circumstance. The Appeals Chamber reiterates that this is not

6 the appropriate forum in which alleged mitigating circumstances, evidence

7 of which was readiness available at trial, should be presented the first

8 time. In any case, Galic has failed to demonstrate a discernible error of

9 the Trial Chamber.

10 With regard to Galic's argument that the Trial Chamber failed to

11 take into account that, had he been given the opportunity to voluntarily

12 surrender, he would have done so, the Appeals Chamber considers that the

13 Trial Chamber did not commit a discernible error because it was not

14 presented with any evidence in support thereof.

15 With regard to Galic's submission that he never discriminated

16 against anybody, the Appeals Chamber finds that Galic's argument is

17 misconceived. Respect towards all people, regardless of their

18 nationality, ethnicity, or religion is the demeanour expected of any

19 individual and does not constitute a factor to be considered in mitigation

20 of sentence. As such, the Trial Chamber correctly found that this

21 circumstance is not so atypical that it is a relevant factor in this case

22 to go towards mitigating Galic's sentence.

23 With regard to Galic's argument that the Trial Chamber failed to

24 take into account his very good cooperation with the members of the

25 UNPROFOR, the Appeals Chamber notes that the Trial Chamber referred to his

1 submission and considered it. The Appeals Chamber finds that Galic failed

2 to show that the Trial Chamber ventured outside its sentencing discretion

3 by not considering his cooperation with the UNPROFOR as a mitigating

4 circumstance. With respect to his cooperation, even after the war, with

5 representatives of the international community, Galic himself notes that

6 he performed his duties in a professional manner. As such, the fact that

7 he, as a professional soldier, cooperated with the international community

8 is not a factor that the Trial Chamber had to take into account as a

9 mitigating circumstance. In addition, the Appeals Chamber notes that this

10 argument was not put forward at trial. An appellant cannot expect the

11 Appeals Chamber to consider mitigating circumstances, evidence of which

12 was available but not introduced at trial, for the first time on appeal.

13 With regard to Galic's submission pertaining to his cooperation

14 with the Prosecution, the Appeals Chamber notes that he has not

15 substantiated it in the Defence appeal brief, as there is only a reference

16 to a large number of military documents without naming those documents nor

17 providing any indication as to their content. In any case, the Appeals

18 Chamber notes that no argument was put forward in Galic's final trial

19 brief in this regard.

20 With regard to his argument that his illness and his exemplary

21 conduct throughout detention should be taken into account as mitigating

22 circumstances, the Appeals Chamber finds that Galic has failed to

23 demonstrate that his health was exceptionally poor. In addition, this

24 factor was not raised in his sentencing submissions at trial and the

25 Appeals Chamber is not the appropriate forum to do so for the first time.

1 The same reasoning applies mutatis mutandis to Galic's argument with

2 regard to his alleged exemplary conduct in the Detention Unit.

3 With regard to his argument that should the Appeals Chamber find

4 Article 7(1) of the Statute inapplicable, and rather apply Article 7(3) of

5 the Statute, his responsibility would be considerably lessened and that

6 this should in turn be reflected in the sentence, the Appeals Chamber need

7 not consider this argument, as it has found Article 7(1) applicable.

8 Therefore, Galic's 19th ground of appeal against the sentence is

9 dismissed.

10 I now turn to the Prosecution's single ground of appeal. Before

11 addressing the core complaint of the Prosecution, that the sentence

12 rendered by the Trial Chamber is manifestly inadequate and that the Trial

13 Chamber committed a discernible error, as the sentence does not reflect

14 the entire gravity of the crimes and the high-ranking position of Galic,

15 the Appeals Chamber first addressed the other arguments raised by the

16 Prosecution that: First, Galic's case falls within the worst case

17 category; and two, a comparison with national practice shows that the

18 crimes committed are universally condemned as particularly grave. With

19 regard to the first of those arguments, the Appeals Chamber reiterates

20 that cases cannot be categorised systematically. Trial Chambers have an

21 overriding obligation to individualise a sentence to fit the circumstances

22 of the accused and the gravity of the crime and, as noted by the Trial

23 Chamber, the gravity of the offence is the primary factor to be taken into

24 account in imposing a sentence.

25 With regard to the Prosecution's reference to national practice,

1 the Appeals Chamber recalls that while some guidance may be found in

2 sentencing practices of systems other than the former Yugoslavia, those

3 must not be given undue weight, as Trial Chambers are not bound by any

4 maximum term of imprisonment applied in a national system. Again, the

5 gravity of a crime must be determined by reference to the particular

6 circumstances of the case and the form and degree of the accused's

7 participation in the crime. The Prosecution's arguments in that respect

8 are dismissed.

9 In support of its argument that the sentence rendered by the Trial

10 Chamber was unreasonable, the Prosecution points to the Trial Chamber's

11 assessment of the gravity of the crime, the aggravating circumstances and

12 the alleged lack of mitigating circumstances. The Prosecution does not

13 challenge the Trial Chamber's findings of fact, but rather, attempts to

14 demonstrate, in view of those facts, that the sentence rendered by the

15 Trial Chamber was manifestly inadequate.

16 The Appeals Chamber duly considered the factors put forward by the

17 Prosecution, as found in trial judgement, and pointed to other important

18 factors demonstrating the exceptional brutality and cruelty of the crimes

19 committed by Galic. Taking into account the related findings of the Trial

20 Chamber, the Appeals Chamber, Judge Meron dissenting and Judge Pocar

21 partially dissenting, finds that the Trial Chamber committed a discernible

22 error in assessing the factors in relation to the gravity of the crime,

23 the role and participation of Galic, the aggravating circumstances of

24 abuse of Galic's position of authority, and the single mitigating

25 circumstance regarding his behaviour throughout the proceedings. Although

1 the Trial Chamber did not err in its factual findings and correctly noted

2 the principles governing sentencing, it committed an error in finding that

3 the sentence imposed adequately reflects the level of gravity of the

4 crimes committed by Galic and his degree of participation.

5 As a result, the Appeals Chamber finds that the sentence imposed

6 on Galic by the Trial Chamber falls outside the range of sentences

7 available to it in the circumstances of this case. The Appeals Chamber

8 considers that the sentence of only 20 years was so unreasonable and

9 plainly unjust, in that it underestimated the gravity of Galic's criminal

10 conduct, that it is able to infer that the Trial Chamber failed to

11 exercise its discretion properly. The Appeals Chamber accordingly allows

12 the Prosecution's appeal.

13 I will now read the disposition of the Appeals Chamber judgement.

14 Mr. Galic, will you please stand.

15 [The appellant stands]

16 JUDGE POCAR: This is the disposition. For the foregoing reasons,

17 the Appeals Chamber, pursuant to Article 25 of the Statute and Rules 117

18 and 118 of the Rules of Procedure and Evidence, noting the respective

19 written submissions of the parties and the arguments they presented at the

20 hearing of 29 August 2006;

21 Sitting in open session;

22 Dismisses Galic's appeal;

23 Allows, by majority, Judge Pocar partially dissenting and Judge

24 Meron dissenting, the Prosecution's appeal, and quashes the sentence of 20

25 years' imprisonment imposed on Galic by the Trial Chamber;

1 Imposes a sentence of life imprisonment, subject to credit being

2 given under Rule 101(C) of the Rules for the period Galic has already

3 spent in detention;

4 Orders in accordance with Rule 103(C) and Rule 107 of the Rules,

5 that Galic is to remain in the custody of the International Tribunal

6 pending the finalisation of arrangements for his transfer to the state in

7 which his sentence will be served.

8 Judge Fausto Pocar appends a partially dissenting opinion.

9 Judge Mohamed Shahabuddeen appends a separate opinion.

10 Judge Theodor Meron appends a separate and partially dissenting

11 opinion.

12 Judge Wolfgang Schomburg appends a separate and partially

13 dissenting opinion.

14 Mr. Galic, you may be seated.

15 Registrar, would you please deliver copies of the judgement to the

16 parties.

17 [Trial Chamber and registrar confer]

18 JUDGE POCAR: Thank you.

19 This concludes the hearing. The Appeals Chamber stands adjourned.

20 --- Whereupon the Appeals Judgement

21 adjourned at 5.28 p.m.

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