Page 662
1 Friday, 17 December 2004
2 [Appeal Judgement]
3 [Open session]
4 [The appellant entered court]
5 [The appellant Cerkez not present in court]
6 --- Upon commencing at 12.49 p.m.
7 JUDGE SCHOMBURG: Good afternoon, everybody. May I ask Madam
8 Registrar please to call the case.
9 THE REGISTRAR: Good afternoon, Your Honours. Case number
10 IT-95-14/2-A, the Prosecutor versus Dario Kordic and Mario Cerkez.
11 JUDGE SCHOMBURG: Thank you. May I have the appearances, please.
12 First the Prosecution.
13 MR. FARRELL: Counsel appearing for the Prosecution, Your Honours,
14 is Norman Farrell, then Ms. Helen Brady, Ms. Marie-Ursula Kind, Ms.
15 Michelle Jarvis. Also appearing with us in Court are our case manger
16 Lourdes Galicia, and the senior trial attorneys from the trial,
17 Mr. Geoffrey Nice and Mr. Ken Scott. Thank you, Your Honour.
18 JUDGE SCHOMBURG: Thank you.
19 And for the Defence, please. The Defence for Mr. Kordic, first.
20 MR. NAUMOVSKI: [Interpretation] Thank you, Your Honour. Good
21 afternoon. The Defence of Mr. Kordic in the person of my colleagues from
22 the United States, Stephen Sayers and Turner Smith. My name is Mitko
23 Naumovski, a lawyer from Zagreb. Thank you.
24 MR. KOVACIC: Good afternoon, Your Honours. For Cerkez Defence,
25 Mr. Goran Mikulicic, my co-counsel, and myself Bozidar Kovacic, attorney
Page 663
1 from Croatia. Thank you.
2 JUDGE SCHOMBURG: Thank you. I note your client in writing has
3 waived his right to be present when the summary of the judgement is to be
4 read out; correct?
5 MR. KOVACIC: Yes, Your Honour. He waived his right.
6 JUDGE SCHOMBURG: Thank you. May I finally ask Mr. Kordic: Can
7 you follow the proceedings in a language you understand?
8 THE APPELLANT KORDIC: [Interpretation] Thank you for asking, Your
9 Honour. Yes. Good afternoon. I can follow the proceedings in a language
10 I understand.
11 JUDGE SCHOMBURG: Thank you. You may be seated again.
12 Before reading out the summary of the judgement, I should like
13 first to thank everybody having assisted in the preparation, translation,
14 editing and printing of this judgement.
15 The Appeals Chamber of this International Tribunal has come
16 together today to deliver its judgement on appeal in the case of
17 Prosecutor versus Dario Kordic and Mario Cerkez.
18 The following is a summary of the Appeals Chamber's judgement
19 which is based on the final deliberations of 2 December 2004. It will be
20 made available in English, French, and B/C/S at the end of the session, in
21 particular to the accused in a language he understands. Copies of the
22 judgement will be made available to the parties towards the end of this
23 session. It has to be emphasised that the only authoritative account of
24 the Appeals conclusion is to be found in the English version of the
25 written judgement.
Page 664
1 The events giving rise to this appeal took place during the
2 conflict between the Croatian Defence Council, the HVO, and the Bosnian
3 Muslim army in Central Bosnia from 1992 until 1993, in particular in the
4 Lasva Valley region.
5 This region, situated at the heart of Central Bosnia, consists of
6 the municipalities of Vitez, Novi Travnik and Busovaca. The municipality
7 of Kiseljak lies to the south of Lasva Valley. The military significance
8 of the area lay in its position in the middle of Bosnia and Herzegovina
9 and the fact that it contained a number of armament factories. It is a
10 mountainous area with important roads running along the valleys going from
11 Herzegovina to Eastern Bosnia and from Sarajevo to the north. Novi
12 Travnik and Kiseljak, about 30 kilometres apart and connected by a road,
13 marks the area at the centre of the events in this case. The village of
14 Ahmici, in which the most serious massacre in this case was undisputedly
15 committed in mid-April 1993, is situated along this road.
16 Let me now turn to the accused. Dario Kordic was born on 14
17 December 1960 in Busovaca in Bosnia and Herzegovina. He is married and
18 has three children. He is a former journalist, and he was gainfully
19 employed at the Vatrostalna company in Busovaca from 1985 onwards. In
20 1991, Kordic became the president of the Croatian Democratic Union of
21 Bosnia and Herzegovina in the municipality of Busovaca. In the same year,
22 he became the vice-president of the Presidency of the Croatian Community
23 of Herceg-Bosna after its foundation on 18 November 1991. When the
24 Croatian Community of Herceg-Bosna turned itself into the Croatian
25 Republic of Herceg-Bosna in August 1993, Kordic continued to serve as
Page 665
1 vice-president.
2 Mario Cerkez was born on 27 March 1959 in Vitez in Bosnia and
3 Herzegovina. He's married and also has three children. Before the
4 outbreak of the armed conflict in the Lasva Valley, he was employed in the
5 Slobodan Princip Seljo factory in Vitez. Cerkez was one of the founders
6 of the HVO in Vitez, his first duty being assistant commander of the Vitez
7 staff, followed by commander of the Vitez Brigade. When the Vitez and
8 Novi Travnik Brigades were united, Cerkez became assistant commander of
9 that brigade. Finally, in March 1993, Cerkez became the commander of the
10 Viteska Brigade.
11 The Trial Chamber convicted Kordic for planning, instigating and
12 ordering, including persecutions, unlawful attacks on civilians and
13 civilian objects, murder, inhumane acts, imprisonment, wanton destruction
14 not justified by military necessity, plunder, and destruction or wilful
15 damage to institutions dedicated to religion or education. These crimes
16 were committed in the municipalities of Travnik, Vitez, Busovaca, and
17 Kiseljak. The Trial Chamber found that Kordic played an instrumental part
18 in ordering the attack on Ahmici in April 1993, an attack in which more
19 than 100 Bosnian Muslim civilians were massacred. The Trial Chamber
20 sentenced Kordic to 25 years of imprisonment.
21 For crimes committed in Vitez, Stari Vitez, and Veceriska, Cerkez
22 was convicted for committing persecutions and pursuant to both Article
23 7(1) and 7(3) of the Statute for unlawful attacks on civilians and
24 civilian objects, murder, inhumane acts, imprisonment, taking civilians as
25 hostages, wanton destruction not justified by military necessity, plunder,
Page 666
1 and destruction or wilful damage to institutions dedicated to religion or
2 education. For these crimes, the Trial Chamber imposed a sentence of 15
3 years of imprisonment. The Trial Chamber acquitted Cerkez, however, of
4 the charges in respect to the crimes allegedly committed by him in Ahmici.
5 The appeals of Kordic and Cerkez are directed against all
6 convictions. Kordic mainly submits that he was denied equality of arms
7 and did not receive a fair trial; that the Trial Chamber erred in relying
8 on uncorroborated hearsay evidence; that the Trial Chamber erred in
9 finding that the Muslim-Croat conflict in Central Bosnia was a unilateral
10 Bosnian Croat campaign of persecution; that he did not have responsibility
11 for the events in Ahmici and elsewhere; and that no armed conflict existed
12 prior to mid-April 1993; and finally, that the sentence was excessive.
13 Cerkez mainly submits that no international armed conflict existed
14 at the relevant time; that the Trial Chamber erroneously convicted him on
15 the basis of Article 7(3) of the Statute; that he did not receive a fair
16 trial as the Trial Chamber erred in the application of material law as a
17 result of erroneous factual findings; and also he claims that the sentence
18 was excessive.
19 Finally, the Prosecution appeals Cerkez's acquittal for crimes in
20 Ahmici and the sentences of both Kordic and Cerkez as being too lenient.
21 During the appellate proceedings, various grounds of appeal were
22 withdrawn, not the least due to the further developed jurisprudence of the
23 International Tribunal since February 2001. In relation to some of the
24 locations mentioned in the charges, the Prosecution has conceded that the
25 trial judgement does not contain the necessary factual findings.
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Page 668
1 Let me pause for a moment for the following more general remarks:
2 The fact is that this International Tribunal has never had and
3 will never have the opportunity to hear cases against all the persons
4 allegedly being among the most responsible for the events in Lasva Valley
5 in one procedure. Chambers of this International Tribunal can only hear a
6 case regarding a person against whom an indictment has been filed and
7 confirmed and who is present in The Hague. The fact that, seen from an
8 objective point of view, a case against an alleged serious offender is and
9 will not be heard before this International Tribunal may be due to several
10 reasons, among them primarily that the Prosecution had not enough evidence
11 and/or that there was insufficient cooperation between the International
12 Tribunal and a state, either in the past or still today. As a result,
13 each Chamber can only carefully analyse the question of individual
14 criminal responsibility for the crimes committed in Lasva Valley in
15 relation to each of the accused brought before it.
16 It also has to be emphasised that each Bench of the International
17 Tribunal decides a case solely on the evidence before it. This evidence,
18 and consequently the disposition, may vary from case to case, as it is
19 mainly the parties who bring evidence in this primarily adversarial legal
20 system. The Appeals Chamber, based on the evidence before it,
21 meticulously determines as a first step whether a crime was established or
22 not. Only then does it decide, again based on the evidence before it,
23 whether or not an accused can be held individually criminally responsible
24 for these crimes. With a view to the victims and their relatives, it has
25 to be further emphasised that a decision of acquittal does not necessarily
Page 669
1 mean that a crime did not occur; it simply means that on the basis of the
2 evidence, the accused cannot be held individually responsible for these
3 crimes.
4 Let me now return to the summary of the judgement and briefly
5 repeat the law governing appellate proceedings.
6 As regards errors of fact pursuant to the jurisprudence of the
7 International Tribunal, the task of hearing, assessing, and weighing the
8 evidence presented at trial is left primarily to the Trial Chamber. Thus
9 the Appeals Chamber must give a margin of deference to a finding of fact
10 reached by a Trial Chamber. Only where the evidence relied on by the
11 Trial Chamber could not have been accepted by any reasonable trier of fact
12 or where the evaluation of the evidence is wholly erroneous will the
13 Appeals Chamber intervene.
14 When considering alleged factual errors raised by the Defence, the
15 Appeals Chamber will only intervene if no reasonable trier of fact could
16 have reached a conclusion of guilt beyond reasonable doubt. When
17 considering alleged factual errors raised by the Prosecution, the Appeals
18 Chamber will determine whether no reasonable trier of fact could have come
19 to the conclusion of acquittal.
20 Where a party contends that a Trial Chamber has made an error of
21 law, the Appeals Chamber is empowered only to reverse or to revise a Trial
22 Chamber's decision when there is an error of law invalidating the
23 decision.
24 I will now briefly turn to the law applicable in relation to the
25 modes of responsibility of the accused. The Trial Chamber convicted
Page 670
1 Kordic of planning, instigating, and ordering crimes pursuant to Article
2 7(1) of the Statute. The mens rea for these modes of responsibility is
3 established if the perpetrator acted with direct intent in relation to his
4 own planning, instigating, or ordering.
5 A lower form of intent is established when a person who orders an
6 act or omission with the awareness of the substantial likelihood that a
7 crime will be committed in the execution of that order has the requisite
8 mens rea for establishing responsibility under Article 7(1) of the Statute
9 pursuant to ordering. Ordering with such awareness has to be regarded as
10 accepting the crime. The Appeals Chamber finds that this correspondingly
11 applies in relation to the modes of responsibility of planning and
12 instigating.
13 In this context, I want to mention that the Appeals Chamber made
14 findings on several other legal issues in the judgement, such as the
15 question of a result requirement in the crime of unlawful attack on
16 civilians or civilian objects and the question of cumulative convictions.
17 These legal issues, however, will not be further discussed in this
18 summary.
19 I will now address Kordic's first ground of appeal and Cerkez's
20 third ground of appeal, namely, the alleged denial of the right to a fair
21 trial under Article 21 of the Statute.
22 Kordic submits that the Prosecution's frequent and substantive
23 changes to its stated case against the accused were unfair in that the
24 Prosecution failed to inform them promptly and in detail of the nature of
25 the charges against them, as required by Article 21 of the Statute. As
Page 671
1 such, the Prosecution allegedly confronted them with a "moving target."
2 The Appeals Chamber finds that counts 1 and 2, persecutions for
3 Kordic and Cerkez respectively, are too broad to be acceptable as to the
4 geographic and temporal scope of the charges and could, on their own,
5 materially impair the accused's ability to defend themselves. However,
6 the Appeals Chamber considers that counts 1 and 2 have to be read as
7 umbrella counts encompassing counts 3 to 44, which further inform the
8 accused in greater detail of the charges against them. With these
9 specifications, the Appeals Chamber is satisfied that the accused were
10 informed of the charges against them and were able, as they did, to defend
11 themselves before the Trial Chamber against the charges contained in the
12 umbrella counts.
13 In this context, the Appeals Chamber notes that the expulsion and
14 "forcible removal" of Bosnian Muslim civilians is mentioned in several
15 paragraphs of the trial judgement, however not in the part on the
16 responsibility of the accused. The Appeals Chamber finds that the reason
17 for this is that the indictment did not sufficiently inform the accused
18 that they had to defend themselves against the charge of expulsion and/or
19 forcible transfer. This vagueness of the indictment had not been cured in
20 the trial proceedings.
21 The accused argue that the Prosecution violated its Rule 68
22 disclosure obligations during pre-trial, the trial, and the post-trial
23 phase in various ways, and in relation to a variety of evidence. The
24 Appeals Chamber notes that the Prosecution has accounted for the
25 presentation of the evidence in this trial in extenso and is satisfied
Page 672
1 that it fulfilled its obligation to assist the Trial Chamber in good faith
2 in view of the complex nature of the case and of the difficulties
3 encountered in accessing large amounts of evidence not immediately
4 accessible for the Prosecution. Kordic and Cerkez failed to establish
5 that the Trial Chamber erred in permitting any such alleged Rule 68
6 violation. The arguments are finally dismissed.
7 Both Kordic and Cerkez submit that the Trial Chamber erroneously
8 held that an international armed conflict existed during the indictment
9 period and consequently found them guilty of grave breaches of the Geneva
10 Conventions of 1949 pursuant to Article 2 of the Statute. In addition,
11 Kordic claims that no armed conflict existed before 15 April 1993, thus
12 barring a conviction under Articles 3 and 5 of the Statute.
13 Contrary to the submissions of Kordic and Cerkez, the Appeals
14 Chamber finds that the Trial Chamber did not err in relying on the overall
15 control test according to which an armed conflict becomes international
16 when a foreign state exercises overall control over the military forces of
17 one of the belligerents. In addition, the Trial Chamber did not err by
18 taking into account the situation in other areas within Bosnia and
19 Herzegovina linked to the armed conflict in Central Bosnia when examining
20 the international character of the armed conflict. Once an armed conflict
21 has become international, the Geneva Conventions apply throughout the
22 respective territories of the warring parties.
23 The Appeals Chamber is satisfied that on the basis of the evidence
24 before it, a reasonable trier of fact could have found that Croatia
25 exercised overall control over the HVO at the relevant time. Likewise,
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Page 674
1 the Trial Chamber reasonably based its finding on reliable evidence that
2 Croatia provided leadership in the planning, coordination, and
3 organisation of the HVO and that there was an international armed conflict
4 between Croatia and Bosnia and Herzegovina.
5 I will now turn to an examination of the crimes for which Kordic
6 and Cerkez had been convicted by the Trial Chamber.
7 The Appeals Chamber considers, however, that the Trial Chamber in
8 most cases did not make specific and explicit factual findings with regard
9 to each element of the crimes but expressly concluded that the crimes were
10 established. The Appeals Chamber considers that by explicitly finding
11 that the crimes were established, the Trial Chamber implicitly found all
12 the relevant factual findings required to cover the elements of the
13 crimes. The Appeals Chamber considers that such an approach falls short
14 of what is required by the Statute of the International Tribunal.
15 However, this does not automatically lead to a dismissal of the charges.
16 The Appeals Chamber agrees with the submissions of the Prosecution that in
17 this particular circumstance, the issue before it is to establish whether
18 the Trial Chamber's findings that the crimes were established are
19 sustained on the record. Therefore, the Appeals Chamber had to consider
20 the crimes location by location and element by element, determining
21 whether the Trial Chamber's finding that that particular element was
22 factually established is a finding that a reasonable trier of fact could
23 have made. I will not discuss each of these crimes in great detail now.
24 For the purposes of this summary, it suffices to state that a number of
25 crimes have not been established and that the corresponding findings of
Page 675
1 the Trial Chamber had to be reversed. The disposition, however, will
2 explicitly identify, location by location, each crime for which the
3 accused finally are acquitted -- convicted.
4 Before I now turn to the grounds of appeal dealing with the
5 individual criminal responsibility of Kordic and Cerkez, I would like to
6 note that the Appeals Chamber particularly examined the Trial Chamber's
7 analysis of those orders and plans that were lawful and others that
8 included the commission of crimes. In this context, it was important to
9 consider the participation of Kordic and Cerkez at the various meetings
10 with different groups of people that were held on 15 April 1993 in the
11 Hotel Vitez, as this leads to a different knowledge and awareness on the
12 part of the accused of the crimes committed thereafter.
13 Kordic argues in his third ground of appeal that the Trial Chamber
14 erred in finding that the Bosnian Croats were engaged in a campaign of
15 persecution in Central Bosnia and in finding him guilty on this charge.
16 In particular in relation to the massacre in Ahmici, the Appeals
17 Chamber considered that a reasonable trier of fact could have concluded
18 that there was a meeting of the Bosnian Croat political leadership on 15
19 April 1993 at the Hotel Vitez and that Kordic was present at this meeting.
20 It was also reasonable to conclude that at this meeting a decision to
21 launch an attack against the Muslims was made. Based on the entirety of
22 direct and circumstantial evidence, a reasonable trier of fact could have
23 concluded that for Kordic this attack on Ahmici and other Lasva Valley
24 villages was aimed at ethnically cleansing the area for strategic reasons.
25 The Appeals Chamber also holds that it was reasonable to find that Kordic,
Page 676
1 as the responsible regional politician, planned and instigated the crimes
2 which occurred in Ahmici on 16 April 1993 and its associated hamlets
3 Santici, Pirici, and Nadioci.
4 In light of the Appeals Chamber's finding that it was indeed
5 reasonable to conclude that an order was given to kill all Muslim men of
6 military age, to expel civilians and to set houses on fire, and this order
7 was approved at that meeting of the political leadership, the Appeals
8 Chamber considered that a reasonable trier of fact could have concluded
9 that Kordic's involvement in the persecutory campaign was not limited to
10 certain areas of Lasva Valley, in particular Ahmici; instead, it included
11 in general the then following crimes, inter alia, the crimes which
12 occurred in Kiseljak municipality in April and June 1993.
13 In relation to the crime of unlawful imprisonment of civilians in
14 Kaonik, the Dubravica elementary school, the SDK building, the Vitez
15 cinema, the village of Rotilj, the Kiseljak barracks and the Kiseljak
16 municipal buildings, the Appeals Chamber considers that the Trial Chamber
17 did not err in inferring that Kordic bears responsibility for the ordering
18 of the establishment of these detention facilities and the detention
19 itself.
20 Kordic submits that the Trial Chamber committed an error of fact
21 occasioning a miscarriage of justice when it concluded that he had the
22 requisite mens rea for any of the crimes of persecution with which he was
23 charged.
24 The Appeals Chamber agrees with the Trial Chamber's findings that
25 Kordic knew that there were attacks on the civilian population which were
Page 677
1 widespread and systematic, and that these acts comprised part of these
2 attacks.
3 I will now turn to the specific intent to discriminate on
4 political, racial, or religious grounds, and I want to stress first that
5 such a specific intent in general can only be inferred from objective
6 facts and the general conduct of an accused seen in its entirety. Only on
7 rare occasions it will be possible to establish such an intent on
8 documents or intercepts laying down a perpetrator's own mens rea.
9 Here, the circumstantial evidence is clear. At a meeting on 27
10 December 1991 in Zagreb, Kordic said that the Croatian people of the
11 Travnik area were ready to accede to the Croatian state, and I quote: "at
12 all costs ... any other option would be considered treason, save the clear
13 demarcation of Croatian soil in the territory of Herceg-Bosna."
14 Further, at a January 1992 rally in Busovaca, Kordic was seen --
15 was to be seen speaking to a cheering, flag-waving crowd, and he said that
16 the rally was proof that the Croatian people in Busovaca are part of the
17 united Croatian nation and that the Croatian community of Herceg-Bosna,
18 including Busovaca, is "Croatian land and that is how it will be."
19 The Appeals Chamber considers that, inter alia, on the basis of
20 the evidence outlined above concerning Kordic's political activities and
21 inclinations, his strong nationalist and ethnic stance and his desire to
22 attain the sovereign Croatian state within the territory of Bosnia and
23 Herzegovina at any cost, Kordic possessed the specific intent to
24 discriminate which is required for the crime of persecutions.
25 On the basis of the foregoing, the Appeals Chamber affirms the
Page 678
1 conviction under count 1, persecutions, a crime against humanity, in
2 relation to Kordic.
3 In relation to Kordic's fourth ground of appeal, dealing with his
4 criminal responsibility, the Appeals Chamber considers that the Trial
5 Chamber's finding that Kordic intended the crimes associated with the
6 attack in Novi Travnik as early as in October 1992 was a finding no
7 reasonable trier of fact could have made. The Appeals Chamber therefore
8 reverses the Trial Chamber's finding that Kordic was guilty for wanton
9 destruction not justified by military necessity and plunder in Novi
10 Travnik in October 1992.
11 With respect to the crimes committed in Busovaca in January 1993,
12 the Appeals Chamber, however, has found that a reasonable trier of fact
13 could have concluded that numerous civilians were targeted and killed in
14 the town, and that murder, a crime against humanity as well as a crime of
15 unlawful attacks on civilian objects, were committed in this town in
16 January 1993. The Appeals Chamber refers further to the Trial Chamber's
17 findings as to the role of Kordic in the campaign of persecution,
18 including his role in the HVO takeover of municipalities, including
19 Busovaca, and his role in the events leading to the conflict and on the
20 eve of the conflict.
21 The attack on Busovaca was directed against Muslim civilians and
22 civilian objects and aimed at the civilian population. Muslim civilians
23 were killed, expelled, and their property destroyed. It was the Trial
24 Chamber's finding that Kordic, as a political leader with substantial
25 military influence, was involved in the planning and ordering of these
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Page 680
1 crimes. The Appeals Chamber concludes that the Trial Chamber's finding
2 that Kordic had the requisite mens rea for these crimes is reasonable.
3 With respect to the crimes committed between April and June 1993
4 in the Lasva Valley, the Appeals Chamber considers that following the
5 meeting of politicians at which Kordic was present on 15 April 1993, a
6 general plan existed to expel the Muslim civilians and to destroy civilian
7 houses. Kordic participated as a senior regional politician in the
8 planning of the military operation and attack against Ahmici, an operation
9 which was aimed at cleansing these areas of Muslims.
10 The Appeals Chamber considers that this general plan included the
11 whole of the Lasva Valley and that the crimes explicitly discussed were to
12 kill military-aged men, expel civilians, and destroy houses. For these
13 crimes Kordic had direct intent. Kordic approved the general plan,
14 knowing that these crimes would be committed, with the awareness of the
15 substantial likelihood that other crimes such as plunder and unlawful
16 detention of civilians would be committed in the execution of this general
17 plan. Planning with such awareness has to be regarded as accepting these
18 crimes.
19 In conclusion, the Appeals Chamber notes that some of the appeals
20 of Kordic have been granted, however, never in relation to counts in their
21 entirety but limited to certain locations.
22 I will now turn to the Prosecution's grounds of appeal. At the
23 outset, it shall be noted that the Prosecution withdrew its first ground
24 of appeal relating to the applicable law of persecutions due to the fact
25 that the underlying legal issue has been settled in the meantime by the
Page 681
1 jurisprudence of the Appeals Chamber.
2 The Prosecution's second and third ground of appeal relate to the
3 Trial Chamber's acquittal of Cerkez for the crimes committed in Ahmici.
4 The Prosecution submits that the Trial Chamber erred both in law
5 and in fact due to a misapplication of Article 7(1) of the Statute to the
6 facts of the case and the alleged failure to consider all relevant
7 evidence on the Trial record.
8 While the Trial Chamber held that the Viteska Brigade participated
9 in operations in Vitez, Veceriska and Ahmici during 16 April 1993, it
10 found that the Viteska Brigade took part in the operation in Ahmici on 16
11 April 1993 only later in the day and not during the initial assault.
12 The Prosecution argues that the factual findings should have led
13 the Trial Chamber to find Cerkez criminally responsible under Article 7(1)
14 of the Statute based on the following types of participation of Cerkez and
15 the Viteska Brigade: Participation of the military planning for the
16 attack on Ahmici; providing significant assistance to the military police
17 units involved in the attack by way of providing means of transportation
18 and preventing UNPROFOR from entering the Ahmici area; and performing
19 physical acts of persecution by detaining Muslims in Ahmici.
20 The Appeals Chamber will first address the Prosecution's
21 submission that the Trial Chamber's finding that the attack on Ahmici was
22 part of a common design or plan conceived and executed by the Bosnian
23 Croat leadership to ethnically cleanse the Lasva Valley of Muslims should
24 have led to a finding that Cerkez was criminally responsible for the
25 crimes in Ahmici.
Page 682
1 As already discussed in relation to Kordic, the Trial Chamber
2 found that the crimes committed in Ahmici were part of this persecutory
3 campaign. However, and contrary to the case of Kordic, the Appeals
4 Chamber finally concludes that there are neither findings nor sufficient
5 evidence to establish that Cerkez had responsibility for the persecutory
6 campaign that included the crimes committed in Ahmici. Accordingly, the
7 submission of the Prosecution that Cerkez should have been held criminally
8 responsible for these crimes based on his participation in the persecutory
9 campaign fails.
10 The Appeals Chamber also considered whether the findings of the
11 Trial Chamber, correctly construed, prove Cerkez's criminal responsibility
12 for the crimes committed in Ahmici outside his alleged participation in a
13 persecutory campaign.
14 The Prosecution submits in particular that the Viteska Brigade was
15 assigned to block the road from Vitez in order to prevent UNPROFOR from
16 entering the Ahmici area.
17 The Appeals Chamber notes, however, that the Trial Chamber never
18 clearly established, and the Trial record does not provide sufficient
19 evidence, whether the purpose of the roadblock was militarily justified or
20 a preparatory or sheltering act for the crimes to be committed in Ahmici.
21 In addition, insufficient evidence has been adduced to show conclusively
22 that Cerkez knew about the allegedly criminal purpose of the roadblock.
23 Cerkez's submission was that the sole task of the Viteska Brigade was to
24 block the direction of a possible ABiH attack from the area of Kruscica
25 and Vraniska and is an equally possible one. Apparently the Trial Chamber
Page 683
1 correctly applied the principle in dubio pro reo; thus the Appeals Chamber
2 cannot identify any error of fact in relation to the question at issue.
3 Therefore, the Trial Chamber correctly held that neither Cerkez nor the
4 Viteska Brigade participated in the crimes committed in Ahmici.
5 In its third ground of appeal, the Prosecution submits that the
6 Trial Chamber erred in its determination that Cerkez did not bear criminal
7 responsibility under Article 7(1) and/or 7(3) of the Statute because the
8 Trial Chamber failed to accept the evidence on the active presence of
9 members of the Viteska Brigade during the attack in Ahmici.
10 The Appeals Chamber has examined without any affirmative result
11 witness testimonies and documentary evidence to which the Prosecution
12 referred in order to prove the alleged presence of members of the Viteska
13 Brigade during the initial attack in Ahmici. The Appeals Chamber finds
14 that a reasonable trier of fact could have come to the conclusion that the
15 evidence does not prove that soldiers of the Viteska Brigade under the
16 command of Cerkez participated in the commission of crimes in Ahmici on 16
17 April 1993. Thus, both the second and the third ground of appeal of the
18 Prosecution are rejected.
19 Turning now to Cerkez's second and fourth ground of appeal dealing
20 with his criminal responsibility. The Appeals Chamber notes that in
21 addition to the inferences that may be drawn from Cerkez's participation
22 in the attacks on Donja Veceriska and Stari Vitez, the Trial Chamber
23 placed emphasis on his participation in the second meeting in the Hotel
24 Vitez on 15 April 1993. Although contested by Cerkez, the Appeals Chamber
25 finds that a reasonable trier of fact could have found that Cerkez was
Page 684
1 present at this second meeting.
2 However, the Trial Chamber made no findings as to what was
3 discussed during this second meeting. It was said that the Muslims would
4 attack in the morning, and the reasonable conclusion is that the reference
5 to Muslims in this context is the Muslim forces and the HVO were to attack
6 them before they were attacked themselves. Thus, the Appeals Chamber
7 finds that a reasonable trier of fact could have found that Cerkez's
8 presence at the second meeting on 15 April 1993 does not establish any
9 intent in relation to any crime.
10 In relation to Cerkez's responsibility for detention-related
11 crimes, the Appeals Chamber finds that with respect to the Vitez
12 veterinary station and the chess club, no reasonable trier of fact could
13 have found that Cerkez incurred criminal responsibility for imprisonment
14 and unlawful confinement of Bosnian Muslim civilians. The Appeals Chamber
15 concludes, however, that it was reasonable to find that Cerkez bears
16 criminal responsibility for the imprisonment and unlawful confinement of
17 Bosnian Muslim civilians in the Vitez cinema and the Vitez SDK building
18 before he ordered their release at the end of April 1993.
19 Furthermore, the Appeals Chamber finds that it was reasonable to
20 conclude that this unlawful detention amounts to persecutions. The
21 civilian detainees in the SDK building and the Vitez cinema were solely
22 Bosnian Muslims. Cerkez knew that the detainees were Muslims and that
23 they were detained because they were Muslims. It is evident that a
24 specific ethnic group is discriminated when all the detainees belong to
25 this group while the guards belong to another ethnic group. By knowingly
Page 685
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Page 686
1 committing these acts he manifested the intent to systematically
2 discriminate against them.
3 All other convictions of the Trial Chamber in relation to Cerkez
4 are reversed. The reasons for this are to be found in the judgement.
5 I will now turn to the question of sentencing.
6 All the three parties appealed both sentences. Kordic submits
7 that the Trial Chamber erroneously overlooked substantial mitigating
8 evidence and that he should not receive a higher sentence than four years.
9 However, the Appeals Chamber finds that the Trial Chamber did not venture
10 outside its scope of discretion when it imposed its sentence on Kordic.
11 Similarly, the Appeals Chamber finds that the Prosecution did not
12 demonstrate that the Trial Chamber made a discernible error in sentencing.
13 Therefore, Kordic's sixth and the Prosecution's fourth ground of appeal
14 are rejected.
15 With respect to Cerkez's sentence, the Appeals Chamber has found
16 him guilty pursuant to Article 7(1) of the Statute for count 2,
17 persecutions, a crime against humanity; count 29, imprisonment, a crime
18 against humanity; and count 30, unlawful confinement of civilians, a grave
19 breach of the Geneva Conventions. The Appeals Chamber has significantly
20 reversed the findings of the Trial Chamber and has granted several of
21 Cerkez's grounds of appeal, overturning most of his convictions.
22 Therefore, the Appeals Chamber is being called upon to mete out a sentence
23 de novo.
24 During its final deliberations on 2 December 2004, the Appeals
25 Chamber arrived at the conclusion that the revised and adequate sentence
Page 687
1 for Cerkez is lower than the time he had already spent in the United
2 Nations Detention Unit. Thus, the Appeals Chamber had the obligation to
3 order his immediate release, as there was no longer a substantive reason
4 justifying a continued detention. It was irrelevant to decide the
5 question whether he could have only been released on the basis of a final
6 judgement, as neither the Statute nor the Rules contain such a
7 requirement. This release was neither a provisional nor an early release;
8 instead, it was a final release. Since this order manditorily had to be
9 made with immediate effect, it did not contain the underlying reasons
10 which are to be found in the judgement and have, in part, been summarised
11 above.
12 When determining the sentence, the Appeals Chamber considered the
13 applicable purposes of sentencing, in particular that of affirmative
14 general prevention. This important purpose aims at reassuring the public
15 that the legal system has been upheld, and at influencing the public in
16 general not to violate this legal system. The Appeals Chamber also
17 considered the general practice regarding prison sentences in the courts
18 of the former Yugoslavia.
19 It further took into account the following aggravating
20 circumstances: The accused's position as a middle-ranking HVO commander
21 and the fact that among the victims of these offences were both young and
22 elderly people and women, being particularly vulnerable in war times.
23 The Appeals Chamber also took into account the following
24 mitigating circumstances: The accused's voluntary surrender to the
25 International Tribunal, the fact that he did not have a prior criminal
Page 688
1 record, his personal and family circumstances, and the fact that his
2 criminal responsibility is limited to a relatively short period of time,
3 namely approximately 14 days.
4 I will now read out in full the operative paragraphs of the
5 Appeals Chamber's judgement that is the disposition.
6 Mr. Kordic, would you please stand up.
7 For the foregoing reasons, the Appeals Chamber, pursuant to
8 Article 25 of the Statute and Rule 117 of the Rules, noting the respective
9 written submissions of the parties and the arguments they presented at the
10 hearing of 17, 18, and 19 May 2004, sitting in open session, with respect
11 to the Prosecution grounds of appeal, notes that the Prosecution's first
12 ground of appeal become moot as it has been withdrawn; rejects the
13 Prosecution's remaining four grounds of appeal.
14 With respect to Kordic's grounds of appeal, rejects Kordic's
15 first, second, fifth and sixth grounds of appeal, allows the ground of
16 appeal concerning his responsibility for crimes committed in Novi Travnik
17 in October 1992, and reverses his convictions pursuant to Article 7 of the
18 Statute under counts 38 and 39, allows in part the ground of appeal
19 concerning his responsibility for crimes committed in Busovaca in January
20 1993; reverses his convictions pursuant to Article 7(1) of the Statute
21 under counts 10 and 12; and affirms his convictions pursuant to Article
22 7(1) of the Statute under count 1, persecutions, a crime against humanity;
23 3, unlawful attack on civilians, a violation of the laws or customs of
24 war; 4, unlawful attack on civilian objects, a violation of the laws or
25 customs of war; 7, murder, a crime against humanity; 8, wilful killing, a
Page 689
1 grave breach of the Geneva Conventions of 1949; 38, wanton destruction not
2 justified by military necessity, a violation of the laws or customs of
3 war; and 39, plunder of public or private property, a violation of the
4 laws or customs of war;
5 Allows the ground of appeal concerning his responsibility for
6 crimes committed in Vitez and Stari Vitez in April 1993, and reverses his
7 convictions pursuant to Article 7(1) of the Statute under counts 3, 4, 7,
8 8, 10, 12, 38, 39 and 43 in relation to Stari Vitez;
9 Allows the ground of appeal concerning his responsibility for
10 crimes committed in the Vitez Veterinary Station and the Vitez chess club
11 and reverses his convictions pursuant to Article 7(1) of the Statute under
12 counts 21 and 22;
13 Allows in part the ground of appeal concerning his responsibility
14 for crimes committed in Veceriska and Donja Veceriska in April 1993,
15 reverses his convictions pursuant to Article 7(1) of the Statute under
16 counts 3, 7, 8, 10, 12, and 39; and affirms his convictions pursuant to
17 Article 7 of the Statute under count 1, persecutions, a crime against
18 humanity; 4, unlawful attack on civilian objects, a violation of the laws
19 or customs of war; and 38, wanton destruction not justified by military
20 necessity, a violation of the laws or customs of war;
21 Rejects the ground of appeal concerning his responsibility for
22 crimes committed in Ahmici in April 1993 and affirms his convictions
23 pursuant to Article 7(1) of the Statute under count 1, persecutions, a
24 crime against humanity; 3, unlawful attack on civilians, a violation of
25 the laws or customs of war; 4, unlawful attack on civilian objects, a
Page 690
1 violation of the laws or customs of war; 7, murder, a crime against
2 humanity; 8, wilful killing, a grave breach of the Geneva Conventions of
3 1949; 10, inhumane acts, a crime against humanity; 12, inhuman treatment,
4 a grave breach of the Geneva Conventions of 1949; 38, wanton destruction
5 not justified by military necessity, a violation of the laws or customs of
6 war; 39, plunder of public or private property, a violation of the laws or
7 customs of war; and 43, destruction or wilful damage to institutions
8 dedicated to religion or education, a violation of the laws or customs of
9 war;
10 Allows in part the ground of appeal concerning his responsibility
11 for crimes committed in Nadioci and Pirici in April 1993, reverses his
12 conviction pursuant to Article 7(1) of the Statute under counts 4, 10, 12,
13 and 38; and affirms his convictions pursuant to Article 7(1) of the
14 Statute under counts 1, persecutions, a crime against humanity; 3,
15 unlawful attack on civilians, a violation of the laws or customs of war;
16 7, murder a crime against humanity; and 8, wilful killing, a grave breach
17 of the Geneva Conventions of 1949;
18 Allows in part the grounds of appeal concerning his responsibility
19 for crimes committed in Santici in April 1993, reverses his convictions
20 pursuant to Article 7(1) of the Statute under counts 10 and 12, and
21 affirms his convictions pursuant to Article 7(1) of the Statute under the
22 count 1, persecutions, a crime against humanity; 3, unlawful attack on
23 civilians, a violation of the laws or customs of war; 4, unlawful attack
24 on civilian objects, a violation of the laws or customs of war; 7, murder
25 a crime against humanity; 8, wilful killing, a grave breach of the Geneva
Page 691
1 Conventions of 1949; and 38, wanton destruction not justified by military
2 necessity, a violation of the laws or customs of war;
3 Allows in part the ground of appeal concerning his responsibility
4 for crimes committed in Rotilj in April through September 1993, reverses
5 his convictions pursuant to Article 7(1) of the Statute under counts 4 and
6 38, and affirms his convictions pursuant to Article 7(1) of the Statute
7 under counts 1, persecutions, a crime against humanity; 3, unlawful attack
8 on civilians, a violation of the laws or customs of war; 7, murder, a
9 crime against humanity; 8, wilful killing, a grave breach of the Geneva
10 Conventions of 1949; 10, inhumane acts, a crime against humanity; 12,
11 inhuman treatment, a grave breach of the Geneva Conventions of 1949; and
12 39, plunder of public or private property, a violation of the laws or
13 customs of war; 21, imprisonment, a crime against humanity; and 22,
14 unlawful confinement of civilians, a grave breach of the Geneva
15 Conventions of 1949;
16 Allows in part the ground of appeal concerning his responsibility
17 for crimes committed in Han Ploca-Grahovci in June 1993, reverses his
18 convictions pursuant to Article 7(1) of the Statute under counts 10 and
19 12, and affirms his convictions pursuant to Article 7(1) of the Statute
20 under counts 1, persecutions, a crime against humanity; 7, murder, a crime
21 against humanity; 8, wilful killing, a grave breach of the Geneva
22 Conventions of 1949; 38, wanton destruction not justified by military
23 necessity, a violation of the laws or customs of war; 39, plunder of
24 public or private property, a violation of the laws or customs of war; and
25 43, destruction or wilful damage to institutions dedicated to religion or
Page 692
1 education, a violation of the laws or customs of war.
2 Rejects the ground of appeal concerning his --
3 THE INTERPRETER: Microphone, please, Your Honour.
4 JUDGE SCHOMBURG: Rejects the ground of appeal concerning his
5 responsibility for crimes committed in Tulica in June 1993, and affirms
6 his convictions pursuant to Article 7(1) of the Statute under counts 1,
7 persecutions, a crime against humanity; 7, murder, a crime against
8 humanity; 8, wilful killing, a grave breach of the Geneva Conventions of
9 1949; 10, inhumane acts, a crime against humanity; 12, inhuman treatment,
10 a grave breach of the Geneva Conventions of 1949; 38, wanton destruction
11 not justified by military necessity, a violation of the laws or customs of
12 war; and 39, plunder of public or private property, a violation of the
13 laws or customs of war;
14 Allows in part the ground of appeal concerning his responsibility
15 for crimes committed in the town of Kiseljak in April 1993, and reverses
16 his convictions pursuant Article 7(1) of the Statute under counts 38 and
17 39;
18 Rejects the grounds of appeal concerning his responsibility for
19 crimes committed in the Kiseljak municipal building in June 1993, the
20 Kiseljak barracks, Kaonik, Vitez cinema, the SDK building, and the
21 Dubravica elementary school, and affirms his convictions pursuant to
22 Article 7(1) of the Statute under counts 1, persecutions, a crime against
23 humanity; 21, imprisonment, a crime against humanity; and 22, unlawful
24 confinement of civilians, a grave breach of the Geneva Conventions of
25 1949;
Page 693
1 Allows in part the ground of appeal concerning his responsibility
2 for crimes committed in Svinjarevo, in April 1993, reverses his conviction
3 pursuant to Article 7(1) of the Statute under count 39, and affirms his
4 convictions pursuant to Article 7(1) of the Statute under count 1,
5 persecution, a crime against humanity; and 38, wanton destruction not
6 justified by military necessity, a violation of the laws or customs of
7 war;
8 Rejects the grounds of appeal concerning his responsibility for
9 crimes committed in Gomoinica in April 1993, and affirms his convictions
10 pursuant to Article 7(1) of the Statute under counts 1, persecutions, a
11 crime against humanity; 38, wanton destruction not justified by military
12 necessity, a violation of the laws or customs of war; and 39, plunder of
13 public or private property, a violation of the laws or customs of war;
14 Rejects the ground of appeal concerning his responsibility for
15 crimes committed in Ocehnici, Behrici, Gromiljak, Polje Visnjica,
16 Visnjica, and Gacice in April 1993, and affirms his convictions pursuant
17 to Article 7(1) of the Statute under counts 1, persecutions a crime
18 against humanity; and 38, wanton destruction not justified by military
19 necessity, a violation of the laws or customs of war;
20 Allows the ground of appeal concerning his responsibility for
21 crimes committed in Merdani in January 1993 and reverses his conviction
22 pursuant to Article 7(1) of the Statute under count 38;
23 Allows the ground of appeal concerning his responsibility for
24 crimes committed in Loncari in April 1993, and reverses his conviction
25 pursuant to Article 7(1) of the Statute under count 39; and
Page 694
1 Reverses all his remaining convictions under count 1.
2 The Appeals Chamber affirms the sentence of 25 years of
3 imprisonment, subject to credit being given under Rule 101(C) of the Rules
4 for the period he has spent in detention for the purposes of this case and
5 orders, in accordance with Rule 103(C) and Rule 107 of the Rules, that
6 Dario Kordic is to remain in the custody of the International Tribunal
7 pending the finalisation of arrangements for his transfer to the state
8 where his sentence will be served.
9 With respect to Cerkez's grounds of appeal, rejects Cerkez's
10 first, third, and fifth ground of appeal, allows Cerkez's ground of appeal
11 concerning his responsibility for crimes committed in Veceriska, Donja
12 Veceriska and Stari Vitez in April 1993, and reverses his convictions
13 pursuant to Article 7(1) and 7(3) of the Statute under counts 5, 6, 14,
14 15, 17, 19, 41, 42 and 44;
15 Allows in part Cerkez's ground of appeal concerning his
16 responsibility for crimes committed in Vitez in April 1993, and reverses
17 his convictions pursuant to Article 7(1) and 7(3) of the Statute under
18 counts 5, 6, 14, 15, 17, 19, 33, 35, 41, 42, and 44;
19 Allows the ground of appeal concerning his responsibility for
20 crimes committed in the Vitez chess club and the Vitez Veterinary Station,
21 and reverses his convictions pursuant to Articles 7(1) and 7(3) of the
22 Statute under counts 29, 30, and 31;
23 Allows in part the ground of appeal concerning his responsibility
24 for crimes committed in the Vitez cinema and the SDK building and reverses
25 his conviction pursuant to Articles 7(1) and 7(3) of the Statute under
Page 695
1 count 31;
2 Allows in part the ground of appeal concerning his responsibility
3 for crimes committed in the Vitez cinema and the SDK building in April
4 1993, reverses his convictions pursuant to Article 7(3) of the Statute in
5 relation to counts 29 and 30, and affirms his convictions pursuant to
6 Article 7(1) of the Statute under counts 2, persecutions, a crime against
7 humanity; count 29, imprisonment, a crime against humanity; and count 30,
8 unlawful confinement of civilians, a grave breach of the Geneva
9 Conventions of 1949;
10 Reverses all his remaining convictions under count 2 and all
11 convictions pursuant to Article 7(3) of the Statute.
12 The Appeals Chamber imposes a new sentence of six years of
13 imprisonment subject to credit being given under Rule 101(C) of the Rules
14 for the period he has spent in detention.
15 And finally - this is valid for both accused - rules that this
16 judgement shall be enforced immediately pursuant to Rule 118 of the Rules.
17 Mr. Kordic, you may sit down.
18 Would the usher please be so kind and distribute the judgement to
19 the parties and the Bench and two draft, I emphasise draft, summaries in
20 B/C/S to both Defence teams and one to Mr. Dario Kordic.
21 Thank you. The proceedings in this case are hereby concluded.
22 --- Whereupon the Appeals Judgement adjourned
23 at 2.02 p.m.
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