Tribunal Criminal Tribunal for the Former Yugoslavia

Page 718

 1                           Tuesday, 17 March 2009

 2                           [Judgement]

 3                           [Open session]

 4                           [The appellant enters court]

 5                           --- Upon commencing at 12.31 p.m.

 6             JUDGE POCAR:  Good afternoon to everybody.

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

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

 9     number IT-00-39-A, the Prosecutor versus Momcilo Krajisnik.

10             JUDGE POCAR:  Thank you.

11             Mr. Krajisnik, can you clearly hear and understand the

12     translation?

13             THE APPELLANT: [Interpretation] Yes, Your Honour.

14             JUDGE POCAR:  Thank you.

15             I will now ask for the appearances of the parties, first for the

16     Prosecution.

17             MR. KREMER:  Good afternoon, Mr. President, Your Honours.

18     Appearing on behalf of the Prosecution, Peter Kremer, to my right,

19     Barbara Goy, Matteo Costi, and Katharina Margetts.  Assisting us this

20     afternoon is our case manager, Lourdes Galicia.

21             JUDGE POCAR:  Thank you.

22             Now counsel for Mr. Krajisnik on the matter of JCE.

23             MR. N. DERSHOWITZ:  Good afternoon, Your Honours,

24     Nathan Dershowitz is counsel on JCE.

25             JUDGE POCAR:  Thank you.

Page 719

 1             And Amicus Curiae?

 2             MR. NICHOLLS: [Microphone not activated]

 3             JUDGE POCAR:  Thank you.

 4             In accordance with the Scheduling Order issued on 26 February,

 5     2009, the Appeals Chamber will now deliver its judgement in this case.

 6     Following the practice of the Tribunal, I will not read out the text of

 7     the judgement except for the disposition.  Instead, I will summarise the

 8     findings of the Appeals Chamber.  This summary is not part of the written

 9     judgement, which is the only authoritative account of the Appeal Chamber

10     rulings.  Copies of the written judgement will be made available at the

11     conclusion of this hearing.

12             This case concerns events that have occurred in 35 municipalities

13     in Bosnia and Herzegovina between 1st July, 1991, and

14     30th December, 1992.  On 27th September, 2006, the Trial Chamber found

15     Krajisnik responsible for persecution, extermination, deportation, and

16     inhumane acts, all crimes against humanity under Article 5 of the

17     Statute.  The Trial Chamber imposed a single sentence of 27 years' of

18     imprisonment.

19             The Trial Chamber found that Krajisnik participated in a joint

20     criminal enterprise whose objective was to ethnically recompose the

21     territories under the control of the Bosnian Serb republic by drastically

22     reducing the proportion of non-Serbs through the commission of various

23     crimes.  It held that there was a leadership component of the JCE, based

24     in the Bosnian Serb capital of Pale, which included Krajisnik,

25     Radovan Karadzic, and other Bosnian Serb leaders.  The local component of

Page 720

 1     this JCE was based in the municipalities of the Bosnian Serb republic and

 2     maintained close links with the Pale-based leadership.

 3             The Prosecution filed its appeal against the sentence on

 4     26 October, 2006.  Krajisnik filed his appeal on 12 February, 2007, and

 5     counsel on the matter of the JCE filed a supplemental appeal brief on his

 6     behalf of 7 April, 2008.  Amicus Curiae filed his appeal on

 7     8th June, 2007.  The appeal hearing in the present case was held on

 8     21st August, 2008, and three evidentiary hearings took place on

 9     3, 5, and 11 November, 2008.

10             I will start with the grounds of appeal raised by Amicus Curiae,

11     followed by Krajisnik's grounds of appeal, and JCE counsel's

12     supplementary challenges.  Finally, I will address the appeals on the

13     sentence jointly.

14             In his first ground of appeal, Amicus Curiae argues that

15     Krajisnik's right to a fair trial was infringed and that he was

16     ineffectively assisted by counsel.  First, he asserts that counsel

17     Brashich failed to hand over the case material to counsel Stewart in a

18     timely and orderly manner and did not provide a significant work product.

19             The Appeals Chamber finds, however, that the Trial Chamber

20     adjusted the pace of the trial to allow for numerous non-sitting days.

21     Thus, the Appeals Chamber is not convinced that counsel Brashich's

22     failure to hand over the case material to counsel Stewart in a timely and

23     orderly manner resulted in a miscarriage of justice.

24             Furthermore, while the Appeals Chamber accepts that the work

25     product handed over from counsel Brashich to counsel Stewart was not in

Page 721

 1     as good state as it should have been, the new Defence team benefitted

 2     from some of the work done by the Brashich team, in particular the

 3     pre-trial brief.  Moreover, the new Defence team was allotted a

 4     substantial legal aid and time for pre-trial preparation.  Thus, the

 5     Appeals Chamber concludes that Krajisnik suffered no prejudice as a

 6     result of the failures of counsel Brashich.

 7             Turning to the alleged failures of counsel Stewart, Amicus Curiae

 8     alleges that counsel Stewart was manifestly unprepared to commence the

 9     trial in February 2004 and committed a grave error in failing to apply

10     for deferral prior to the commencement of the trial.  The Appeals Chamber

11     finds, however, that the Stewart Defence team was not grossly unprepared

12     to commence trial in February 2004, and Amicus Curiae has not

13     demonstrated that the insufficient preparation of the Defence team at the

14     beginning of the trial resulted in a miscarriage of justice.

15             Amicus Curiae further submits that counsel Stewart failed to

16     adequately review the material disclosed to the Defence and that he had

17     read only 1 or 2 per cent of the case papers when the trial started and

18     no more than 15 per cent of the documents 13 months into the trial.  The

19     Appeals Chamber notes that, as acknowledged by counsel Stewart, he

20     delegated the review of the documents to his team as appropriate.

21     Therefore, Amicus Curiae has not demonstrated that the Defence's review

22     of the disclosure material, imperfect though it may have been, has

23     occasioned a miscarriage of justice.

24             Furthermore, Amicus Curiae contends that counsel Stewart failed

25     to obtain proper instructions from Krajisnik prior to the commencement of

Page 722

 1     the trial to determine an appropriate defence strategy.  Counsel Stewart

 2     testified on appeal, however, that he had a specific understanding of the

 3     defence strategy prior to trial, based in large part on instructions from

 4     Krajisnik.  Hence, this argument is dismissed.

 5             Amicus Curiae further alleges that the inadequacies in the

 6     preparation of the Defence case led co-counsel Ms. Loukas and case

 7     manager Ms. Cmeric to withdraw from the case in 2005, which further

 8     diminished the effectiveness of Krajisnik's representation.  The Appeals

 9     Chamber notes that the leaving team members were immediately replaced and

10     that lead counsel Stewart remained on the case until the end of the

11     trial.  This argument is thus dismissed.

12             Amicus Curiae also asserts that the Trial Chamber accorded the

13     Defence a manifestly inadequate amount of time to prepare the final brief

14     by 18 August 2006; however, the Defence was informed as early as

15     26 April 2005 that the final brief would be due 11 working days after the

16     close of the case.  This allegation is thus dismissed.

17             Amicus Curiae further argues that the Trial Chamber breached the

18     fairness of Krajisnik's trial by impermissibly restricting his right to

19     examine the Prosecution witnesses.  However, Amicus Curiae fails to

20     detail how the Trial Chamber abused its discretion under Rule 90(F) of

21     the Rules.  This contention is thus dismissed.

22             Amicus Curiae also submits that the Defence was not accorded

23     sufficient time and resources to prepare for cross-examination of the

24     Trial Chamber witnesses.  However, the Appeals Chamber notes that the

25     Defence received the material related to these witnesses reasonably in

Page 723

 1     advance of their testimony and that these witnesses were well-known to

 2     Krajisnik and his Defence.  Similarly, the Appeals Chamber rejects

 3     Amicus Curiae's argument that the Defence was accorded insufficient time

 4     to cross-examine Trial Chamber witness, Mrs. Plavsic, as the Defence only

 5     used three-quarters of the two hours and 40 minutes allotted by the

 6     Trial Chamber to cross-examine her.

 7             Amicus Curiae further alleges that the Trial Chamber erred in its

 8     decision denying Krajisnik's request for self-representation.  He does

 9     not show, however, that a request for self-representation must always be

10     honoured in the absence of persistent obstructionist conduct on the part

11     of the accused.  This sub-ground of appeal is thus dismissed.

12             Amicus Curiae further argues that the Judges of the recomposed

13     Trial Chamber erred in law by ordering the resumption of trial although

14     it was obvious that Judge Hanoteau, the Substitute Judge, had not

15     acquired the requisite familiarity with the case.  Amicus Curiae,

16     however, fails to bring forward any evidence that Judge Hanoteau had not

17     sufficiently familiarised himself with the case to be able to be properly

18     discharge his functions.  This sub-ground is dismissed.

19             For the foregoing reasons, the Appeals Chamber dismisses

20     Amicus Curiae's assertion that Krajisnik's trial was unfair.  That said,

21     the Appeals Chamber notes that certain aspects of the conduct of the

22     trial were not free from defects and may have created an appearance of

23     unfairness.  However, based on a holistic assessment of the trial record

24     and the additional evidence on appeal, the Appeals Chamber is not

25     satisfied that Amicus Curiae has shown that these defects amount to a

Page 724

 1     miscarriage of justice which would undermine the fairness of the trial

 2     received by Krajisnik.  This ground of appeal is therefore dismissed in

 3     its entirety.

 4             In the second ground of appeal, Amicus Curiae submits that the

 5     Trial Chamber erred in law by failing to provide a sufficiently reasoned

 6     judgement and to give reasons as to why certain witnesses or exhibits

 7     were found credible and others not.  The Appeals Chamber notes, however,

 8     that the Trial Chamber specifically states that it had carefully

 9     deliberated on the evidence presented to it.  The impugned passages

10     merely stress the fact that the Trial Chamber could not present and

11     discuss all the evidence in the judgement, a statement which cannot by

12     itself be equated with a failure to examine the evidence in question.

13     Hence, the second ground of appeal raised by Amicus Curiae is rejected.

14             In his third ground of appeal, Amicus Curiae argues that the

15     Trial Chamber did not correctly identify the participants in the JCE and

16     could thus not conclude beyond a reasonable doubt as to the existence of

17     a common objective between them and Krajisnik.  The Appeals Chamber finds

18     that the Trial Chamber indeed erred in failing to specify whether all or

19     only some of the local politicians, militaries, police commanders, and

20     paramilitary leaders referred to in paragraph 1087 of the trial judgement

21     were JCE members.  This sub-ground is thus granted.

22             Amicus Curiae further alleges that the Trial Chamber erroneously

23     failed to make findings as to when the murders formed part of the JCE and

24     could thus be imputed to Krajisnik.  In this context, the Appeals Chamber

25     first notes that it is satisfied that the Trial Chamber found that

Page 725

 1     Krajisnik shared the intent to commit the original crimes of deportation,

 2     forcible transfer, and persecution based on these crimes from the

 3     beginning of the JCE.

 4             With respect to the expanded crimes of murder, extermination, and

 5     persecution, based on crimes other than deportation and forcible

 6     transfer, the Trial Chamber generally found that they were added to the

 7     JCE after leading members of the JCE were informed of them, took no

 8     effective measures to prevent their recurrence, and persisted in the

 9     implementation of the common objective, thereby coming to intend these

10     expanded crimes.  The Appeals Chamber notes, however, that the

11     Trial Chamber made only scarce findings, if at all, on these

12     requirements.

13             Therefore, the Appeals Chamber is not able to conclude with the

14     necessary preciseness how and at which point in time the common objective

15     of the JCE included the expanded crimes and consequently on what basis

16     the Trial Chamber imputed those expanded crimes to Krajisnik.  Neither

17     the Appeals Chamber nor an accused can be required to engage in

18     speculation on the meaning of the Trial Chamber's findings - or lack

19     thereof - in relation to such a central element of Krajisnik's individual

20     criminal responsibility as the scope of the common objective of the JCE.

21             Thus, the Appeals Chamber finds that the Trial Chamber committed

22     a legal error in failing to make the findings necessary for Krajisnik's

23     conviction in relation to the following expanded crimes, which were not

24     included in the original common objective of the JCE:  Persecution,

25     Count 3, with the exception of the underlying acts of deportation and

Page 726

 1     forcible transfer; extermination, Count 4; and murder, Count 5.

 2             Consequently, the Appeals Chamber grants this sub-ground of

 3     appeal in part and dismisses its remainder.  Krajisnik's convictions for

 4     expanded crimes under Counts 3, 4, and 5 are thus quashed.

 5             Amicus Curiae further argues that the Trial Chamber erred in law

 6     by holding that a JCE member can be criminally responsible for the acts

 7     of persons who were not members of the JCE and who potentially did not

 8     even know of the existence or purpose of the JCE.  Amicus Curiae avers

 9     that the Trial Chamber erred in departing from the Brdjanin appeal

10     judgement, and that it failed to find the existence of a link between

11     Krajisnik and the crimes.

12             The Trial Chamber held that a JCE member could incur liability

13     for crimes committed by principal perpetrators procured by a JCE member

14     to commit crimes which further the common objective.  The Appeals Chamber

15     is satisfied that this standard corresponds in substance to the standard

16     outlined in the Brdjanin appeal judgement which was rendered after the

17     trial judgement in the present case.  Amicus Curiae therefore fails to

18     show an error by the Trial Chamber in this respect.

19             The Appeals Chamber observes, however, that on many occasions the

20     Trial Chamber erred in failing to reach any finding on the link between

21     the principal perpetrators of the original crimes of deportation,

22     forcible transfer, and persecution based on these crimes and the JCE

23     members.  As a result, the Appeals Chamber concludes that the

24     Trial Chamber made only findings that the following original crimes were

25     committed by JCE members by using principal perpetrators in furtherance

Page 727

 1     of the common purpose:  Persecution by way of deportation, Count 3, in

 2     Bratunac, Zvornik, Sanski Most, Banja Luka, Bijeljina, and Prnjavor;

 3     persecution by way of forcible transfer, Count 3, in Bijeljina, Bratunac,

 4     Zvornik, Bosanska Krupa, Sanski Most, Trnovo, and Sokolac; deportation,

 5     Count 7, in Bratunac, Zvornik, Sanski Most, Banja Luka, Bijeljina, and

 6     Prnjavor; and inhumane acts by way of forcible transfer, Count 8, in

 7     Bijeljina, Bratunac, Zvornik, Bosanska Krupa, Sanski Most, Trnovo, and

 8     Sokolac.

 9             Krajisnik's convictions for the remainder of the original crimes

10     under Counts 3, 7, and 8 are thus quashed.

11             Furthermore, Amicus Curiae alleges that the Trial Chamber erred

12     in law by failing to make the relevant findings on deportation with

13     regard to each municipality.  The Appeals Chamber finds that the

14     Trial Chamber indeed failed to always perform the required analysis of

15     whether a sufficient de facto or de jure border was crossed and that the

16     findings on deportation from Bijeljina, Bratunac, Sanski Most must fall.

17     Consequently, Krajisnik's convictions for these crimes are quashed.

18     However, the Appeals Chamber is of the view that the Trial Chamber found

19     that forced displacements of persons across de jure state borders

20     occurred in the municipalities of Zvornik, Banja Luka, Prnjavor,

21     amounting to deportation.  This ground of appeal is thus granted in part.

22             Next, Amicus Curiae submits that the Trial Chamber erred in law

23     when finding Krajisnik guilty of forcible transfer as other inhumane

24     acts, without finding that the displacements were of sufficient gravity

25     to constitute other inhumane acts.  The Appeals Chamber finds that the

Page 728

 1     Trial Chamber indeed erroneously failed to find that the instances of

 2     forcible transfer were sufficiently serious to amount to other inhumane

 3     acts under Article 5(i) of the Statute.  This error does not, however,

 4     invalidate the judgement, as the acts of forcible transfer were of

 5     similar seriousness to the instances of deportation.  Thus, this ground

 6     of appeal is dismissed.

 7             Amicus Curiae further submits that the Trial Chamber erred in

 8     fact when making findings with respect to Krajisnik's hierarchical

 9     positions in the Bosnian Serb leadership.  The Appeals Chamber is

10     satisfied, however, that the Trial Chamber exercised caution in assessing

11     the relevant witness evidence and it is not convinced that the additional

12     evidence provided by Radovan Karadzic is sufficient to undermine the

13     extensive evidence supporting the Trial Chamber's findings.

14             Amicus Curiae further argues that the Trial Chamber's findings

15     regarding Krajisnik's powers and authority are at odds with its

16     conclusion that he lacked effective control.  The Appeals Chamber

17     disagrees, as the Trial Chamber correctly held that effective control is

18     not a required element of JCE liability, the only form of responsibility

19     found applicable to Krajisnik.

20             Next, Amicus Curiae submits that the Prosecution breached

21     Rule 90(H)(ii) to the Rules when it failed to put to Krajisnik during his

22     testimony material matters on which it relied to prove his guilt and

23     which were in contradiction with his evidence.  The Appeals Chamber

24     finds, however, that Rule 90(H)(ii) of the Rules was not intended to

25     apply to an accused testifying as a witness in his own case.

Page 729

 1     Furthermore, the Appeals Chamber is satisfied that Krajisnik was well

 2     aware of the Prosecution's case against him.  Thus, this ground of appeal

 3     is dismissed.

 4             Amicus Curiae further alleges that the Trial Chamber erroneously

 5     applied the law on cumulative convictions and requests the

 6     Appeals Chamber to quash the convictions on Count 3, persecution, or

 7     alternatively on Counts 5, murder; Count 7, deportation; and Count 8,

 8     inhumane acts.  The Appeals Chamber recalls, however, that the Tribunal's

 9     jurisprudence on intra-Article 5 cumulative convictions is

10     well-established.  Therefore, the Appeals Chamber, by majority,

11     Judge Guney dissenting, finds that the Trial Chamber did not err in

12     cumulating the convictions for persecutions with the convictions for

13     other crimes against humanity based on the same facts.  This ground of

14     appeal is dismissed.

15             I will now turn to Momcilo Krajisnik's appeal.

16             In relation to Krajisnik's submissions that the Trial Chamber

17     violated his fair trial rights, the Appeals Chamber recalls the some of

18     these arguments were already dismissed under the grounds of appeal

19     submitted by Amicus Curiae.  Similarly, Krajisnik does not show any error

20     by the Trial Chamber in relation to the remainder of his submissions.

21             Krajisnik further argues that the Trial Chamber erred in law and

22     in fact in finding that he was a JCE member, as he and the other alleged

23     members of the JCE were simply individuals carrying out tasks within

24     their lawful competencies, as part of the functioning of the state

25     administration and in accordance with the constitution.  The

Page 730

 1     Appeals Chamber dismisses his arguments as irrelevant to determine

 2     whether the actions of the concerned persons resulted in statutory

 3     criminal liability.

 4             Furthermore Krajisnik's challenges to the Trial Chamber's

 5     findings on the creation of Serb autonomous regions and districts, on the

 6     creation of the Bosnian Serb Assembly, and on the SDS instructions of

 7     19 December 1991, on the proclamation of the Bosnian Serb republic, on

 8     the consolidation of Bosnian Serb legal authority, and on the support of

 9     arming activities are dismissed.  His arguments, however, are irrelevant,

10     undeveloped, unsupported, fail to address the remaining evidence the

11     Trial Chamber relied on, or challenge factual findings on which the

12     conviction does not rely.

13             For similar reasons, the Appeals Chamber dismisses Krajisnik's

14     challenges relating to the Trial Chamber's findings on the Bosnian Serb

15     government and judiciary; the Bosnian Serb Presidency; the armed forces;

16     the MUP, Ministry of Internal Affairs; Crisis Staffs; War Presidencies

17     and war commissions; and Krajisnik's style of leadership.

18             I will now turn to the supplementary challenges related to the

19     issue of JCE made by JCE counsel on behalf of Krajisnik.

20             First, JCE counsel challenge the legitimacy of JCE liability and

21     contest the finding in the Tadic appeal judgement that JCE existed under

22     customary international law.  The Appeals Chamber considers, however,

23     that JCE counsel advance no cogent reasons why it should depart from its

24     holding that the Statute provides, albeit not explicitly, for JCE as a

25     form of criminal liability.  This sub-ground is thus dismissed.

Page 731

 1             JCE counsel further submits that the Trial Chamber erred in

 2     finding that JCE is a form of commission under Article 7(1) of the

 3     Statute, rendering nugatory the other modes of liability.  However, since

 4     the other farms of liability are distinguishable from JCE, the latter

 5     does not render the other forms of liability under the Article 7(1)

 6     nugatory.  This sub-ground is also dismissed.

 7             Next, JCE counsel submits that Krajisnik lacked proper notice

 8     that he faced JCE liability, a concept that allegedly did not arise until

 9     1999 and has expanded since then to include high-level officials with

10     only tenuous connections to the crimes.  The Appeals Chamber recalls,

11     however, that when it interprets the JCE doctrine it does not create new

12     law; instead, it merely identifies what the proper interpretation of that

13     doctrine has always been, even though not previously expressed that way.

14     This does not contravene the nullum crimen sine lege principle and this

15     sub-ground is thus dismissed.

16             JCE counsel further asserts that Krajisnik's political speeches

17     cannot, as a matter of law, constitute a contribution to the JCE because

18     they were protected under his right to freedom of speech.  The

19     Appeals Chamber disagrees.  What matters in terms of law is that an

20     accused lends a significant contribution to the commission of the crimes

21     involved in the JCE.  Beyond that, the law does not foresee specific

22     types of conduct which per se could not be considered a contribution to

23     the common purpose.  Hence, this part of the appeal is dismissed.

24             Similarly, the Appeals Chamber rejects JCE counsel's submissions

25     that the groups of 1.008 and 1.001 detainees from Manjaca camp were not

Page 732

 1     moved by JCE members, but rather under the supervision of the UNHCR.  The

 2     fact that the displaced persons were accompanied by international forces

 3     did not render their displacement lawful.

 4             The Appeals Chamber accepts in part, however, JCE counsel's

 5     supplementary arguments with respect to the identity of the rank and file

 6     JCE members, Krajisnik's responsibility for the expanded crimes, and the

 7     lack of findings on a link between the physical perpetrators and the JCE

 8     members for some of the original crimes.  The remainder of the grounds of

 9     appeal raised by JCE counsel is dismissed.

10             The Appeals Chamber will now turn to the appeals of the sentence

11     by Amicus Curiae, Krajisnik, and the Prosecution.

12             Amicus Curiae argues that the penalty is excessive, given that

13     Krajisnik did not directly perpetrate or order any of the crimes.  He

14     adds that the Trial Chamber wrongly considered the acts of others in

15     calculating Krajisnik's sentence.  The Appeals Chamber finds, however,

16     that the fact that Krajisnik did not directly perpetrate or order any of

17     the crimes does not necessarily entail that Krajisnik should be entitled

18     to a lesser sentence.  As to the allegation that the Trial Chamber

19     referred to acts of others in calculating Krajisnik's sentence, his

20     argument clearly fails.  This ground of appeal is thus rejected.

21             Krajisnik submits that the Trial Chamber did not consider the

22     general practice of sentencing in the former Yugoslavia; erred by not

23     analysing the gravity of the crimes and the aggravating circumstances

24     separately; and imposed a penalty that seemed to be a reprisal.  The

25     Appeals Chamber recalls that reference to the general practice regarding

Page 733

 1     prison sentences in the courts of the former Yugoslavia is not binding.

 2     In the instant case, the Trial Chamber complied with its obligation to

 3     consider this issue.  This argument is thus rejected.

 4             With regard to Krajisnik's argument that the Trial Chamber failed

 5     to assess the gravity of the crimes and the aggravating circumstances

 6     separately, the Appeals Chamber notes that the Trial Chamber indeed

 7     distinguished between aggravating circumstances on the one hand and the

 8     gravity of the crimes on the other, albeit considering them under the

 9     same heading.  This argument is therefore rejected.

10             Krajisnik further contends that the Trial Chamber should have

11     considered his efforts and his involvement in peace negotiations, as well

12     as the fact that he acted within his legal authority in mitigation of his

13     sentence.  However, Krajisnik fails to demonstrate that these factors

14     would have been accorded sufficient weight to have any impact on the

15     sentence, especially considering the fact that the Trial Chamber granted

16     only very limited weight in mitigation to the factors explicitly

17     considered.  Therefore, this challenge is also rejected and Krajisnik's

18     appeal with respect to the sentence is dismissed in its entirety.

19             The Prosecution raises a single ground of appeal, arguing that a

20     life sentence is the only sentence proportionate to the overall magnitude

21     of Krajisnik's crimes.  The Prosecution does not point, however, to any

22     element which would have been omitted by the Trial Chamber in determining

23     the sentence.  It merely argues that the sentence does not properly

24     reflect the gravity of Krajisnik's criminal conduct and fails to ensure

25     sufficient retribution and deterrence.  The Appeals Chamber cannot

Page 734

 1     conclude that the sentence imposed completely fails to reflect the

 2     seriousness of Krajisnik's criminal conduct or that it does not express

 3     the outrage of the international community and that it is grossly

 4     insufficient to ensure deterrence.  The Prosecution's first sub-ground is

 5     therefore dismissed.

 6             Next, the Prosecution argues that no mitigating factors justified

 7     the imposition of anything less than life imprisonment.

 8             The Appeals Chamber notes that the Trial Chamber found that while

 9     factors by themselves did not constitute mitigating circumstances, taken

10     together, these factors amounted to personal circumstances of a kind

11     which may be accorded some, although very limited, weight in mitigation.

12     The Appeals Chamber is puzzled by this finding.  A factor is either a

13     mitigating circumstance or it is not.  If it is not, it cannot be taken

14     in mitigation even when considered with other factors which do not

15     constitute mitigating circumstances.  The Trial Chamber should have

16     specified which elements constituted in its view mitigating

17     circumstances.  Nevertheless, even if the Appeals Chamber were to find

18     that the Trial Chamber erred in retaining some of the above-mentioned

19     factors in mitigation, it would still not be clear that such error had

20     any impact on the sentence imposed, as the Trial Chamber itself stated

21     that it accorded very limited weight in mitigation to these factors.

22     Thus, the Appeals Chamber cannot conclude that the Prosecution has

23     demonstrated an error which invalidates the decision on the sentence.

24     The Prosecution's ground of appeal on sentencing is thus dismissed in its

25     entirety.

Page 735

 1             In conclusion, the Appeals Chamber has dismissed the

 2     Prosecution's appeal and has granted Amicus Curiae's and Krajisnik's

 3     appeals in part.  While Krajisnik's convictions for three counts of the

 4     indictment, that is, deportation, forcible transfer and persecution based

 5     on these crimes, remain intact, the Trial Chamber erroneously imputed

 6     criminal liability to Krajisnik for two other counts and most of the

 7     crimes mentioned in parts 4 and 5 of the trial judgement.

 8             The Appeals Chamber recalls that in some cases, the circumstances

 9     have warranted it to ascertain itself whether the Trial Chamber's

10     findings on their own or in combination with relevant evidence sustain

11     the conviction.  Given the factually complex circumstances of the case,

12     an appellate assessment of the crimes for which the Trial Chamber

13     erroneously imputed criminal liability to Krajisnik would require the

14     Appeals Chamber to re-evaluate the entire trial record.  However, an

15     appeal is not a trial de novo and the Appeals Chamber cannot be expected

16     to act as a primary trier of fact, as it is not, as a general rule, in

17     the best position to assess the reliability and credibility of the

18     evidence.

19             While Rule 117(C) of the Rules vests the Appeals Chamber with

20     discretion to order a retrial in appropriate circumstances, the

21     Appeals Chamber is not obliged, having identified an error, to remit the

22     case for retrial.  An order for retrial is an exceptional measure to

23     which resort must necessarily be limited.  The Appeals Chamber notes that

24     the convictions for the majority of the crimes, of which Krajisnik had

25     been found guilty, have been quashed.  However, convictions for

Page 736

 1     persecutions, deportation, and forcible transfer have been upheld and the

 2     gravity of these crimes requires a severe and proportionate sentence.

 3     Therefore, in the circumstances of this particular case, the

 4     Appeals Chamber considers that it is not in the interests of justice to

 5     remit the case for further proceedings.

 6             As a result, the Appeals Chamber has determined the adequate

 7     sentence for the crimes which were correctly imputed to Krajisnik.

 8             I will now read out the disposition of the appeal judgement.

 9             Mr. Krajisnik will you please rise.

10                           [The appellant stands up]

11             JUDGE POCAR:  Here is the disposition.

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

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

14     respective written submissions of the parties and the arguments they

15     presented at the appeal hearing on 21 August 2008; sitting in open

16     session; grants sub-ground 3(A) submitted by Amicus Curiae; grants in

17     part sub-grounds 3(B), 3(E), 3(G), and grounds 4 and 7 submitted by

18     Amicus Curiae; dismisses, Judge Guney dissenting in relation to

19     ground 10, the remainder of the grounds of appeal submitted by

20     Amicus Curiae; grants the third ground of appeal of the Dershowitz brief

21     in part; dismisses the remainder of Krajisnik's appeal; reverses

22     Krajisnik's convictions under Counts 4 and 5; reverses Krajisnik's

23     convictions under Counts 3, 7, and 8; dismisses the Prosecution's ground

24     of appeal related to the sentence; sentences Krajisnik to 20 years'

25     imprisonment to run as of this day, subject to credit being given under

Page 737

 1     Rule 101(C) and Rule 107 of the Rules for the period that Krajisnik has

 2     already spent in detention since his arrest on 3 April 2000; orders in

 3     accordance with Rule 103(C) and Rule 107 of the Rules, that

 4     Momcilo Krajisnik is to remain in the custody of the Tribunal pending the

 5     finalisation of arrangements for his transfer to the State where his

 6     sentence will be served.

 7             Judge Mohamed Shahabuddeen appends a separate opinion.

 8             Mr. Krajisnik, you may now sit down.

 9                           [The witness sits down]

10             JUDGE POCAR:  Mr. Registrar, would you please distribute copies

11     of the appeal judgement to the parties and Amicus Curiae.

12             Thank you very much.  This concludes the appellate proceedings in

13     this case.  The Appeals Chamber will now rise.

14                           --- Whereupon the hearing adjourns at 1.16 p.m.