1 Monday, 28 February 2005
2 [Appeals Judgement]
3 [Open session]
4 [The appellants entered court]
5 --- Upon commencing at 2.23 p.m.
6 JUDGE SHAHABUDDEEN: This Appeals Chamber of the International
7 Tribunal is now in session.
8 Madam Registrar, will you please call the case next on the list.
9 THE REGISTRAR: Good afternoon, Your Honours. Case number
10 IT-98-30/1-A, the Prosecutor versus Miroslav Kvocka, Mladjo Radic, Zoran
11 Zigic and Dragoljub Prcac.
12 JUDGE SHAHABUDDEEN: Thank you.
13 Now, our first duty is to test the equipment, so I turn to the
14 Appellants and ask if they can hear me and understand me in the language
15 that they're accustomed to.
16 THE ACCUSED: [Interpretation] I can hear you, Your Honour.
17 JUDGE SHAHABUDDEEN: You speak on behalf of all your colleagues.
18 THE ACCUSED KVOCKA: [Interpretation] Yes. They have all confirmed
19 that they can hear you.
20 JUDGE SHAHABUDDEEN: The arrangement which I ought to announce.
21 It concerns a request by Mr. Simic for a telephone conference. I believe
22 we all are familiar with Mr. Simic. He has been counsel for one of the
23 Appellants, and so an order was made on the 22nd of February, 2005,
24 permitting him to appear via telephone.
25 Could I ask whether Mr. Simic is hearing me?
1 [Mr. Simic participates via telephone]
2 MR. SIMIC: [Interpretation] Yes. Good afternoon, Your Honour. I
3 can hear you very well, and thank you once again for your understanding
4 and for enabling me to address you in this manner.
5 JUDGE SHAHABUDDEEN: He is hearing me. Well then, we shall pass
6 on the basis that he may come in later on. Alternatively, it is the right
7 of counsel to appear, but we have no power to compel him.
8 MR. SIMIC: [Interpretation] Yes.
9 JUDGE SHAHABUDDEEN: I would now turn and ask for the appearances
10 of counsel.
11 First, the Defence.
12 MR. FILA: [Interpretation] Good afternoon, Your Honours. My name
13 is Toma Fila, and I am appearing on behalf of Mladjo Radic. Thank you.
14 MR. RODIC: [Interpretation] Good afternoon, Your Honours. My name
15 is Goran Rodic, I'm an attorney-at-law from Podgorica, representing Mr.
16 Dragoljub Prcac in this case.
17 JUDGE SHAHABUDDEEN: The next, please?
18 MR. STOJANOVIC: [Interpretation] Your Honours, good afternoon. My
19 name is Slobodan Stojanovic, I'm an attorney-at-law from Belgrade,
20 appearing on behalf of Mr. Zoran Zigic. Thank you.
21 JUDGE SHAHABUDDEEN: Will any of you be holding for Mr. Simic in
22 his absence?
23 MR. SIMIC: [Interpretation] Mr. Simic is appearing on behalf of
24 Mr. Simic.
25 JUDGE SHAHABUDDEEN: Very well.
1 For the Prosecution.
2 MS. BRADY: Good afternoon, Your Honours. Helen Brady appearing
3 on behalf of the prosection, together with Mr. David Re and our case
4 manager, Ms. Lourdes Galicia.
5 JUDGE SHAHABUDDEEN: The Appeals Chamber of this International
6 Tribunal will now deliver its Judgement in the Prosecutor versus Miroslav
7 Kvocka, Mladjo Radic, Zoran Zigic, and Dragoljub Prcac.
8 What I am now reading is a summary of the Judgement and not the
9 Judgement itself. The Judgement will be made available in English,
10 French, and B/C/S at the end of this session, in particular to the
11 Appellants, in a language they understand. I emphasise that the only
12 authoritative account of the Appeals Chamber's conclusions is to be found
13 in the English version of the written Judgement. The disposition will,
14 however, be read out at the end of this summary as it appears in the
16 One further point. The case, as you know, has been a complicated
17 one. There are several Appellants. In consequence, the summary is longer
18 than usual. In these circumstances, I have asked two of my colleagues on
19 the Bench to help me by reading some parts of the summary. They have
20 kindly agreed. I shall turn to them in due course.
21 The trial of Miroslav Kvocka, Mladjo Radic, Zoran Zigic, Dragoljub
22 Prcac, and Milojica Kos commenced in February 2000. Trial Chamber I of
23 this Tribunal delivered its Judgement on 2 November 2001. The Appellant
24 Kvocka appealed on 13 November 2001, the Appellants Radic and Prcac
25 appealed on 15 November 2001, and Kos and the Appellant Zigic appealed on
1 16 November 2001. On 21 May 2002, Kos withdrew his appeal.
2 This appeal has been characterised in part by the filing of a
3 number of motions to admit additional evidence on appeal pursuant to Rule
4 115 of the Rules. The Appeals Chamber found that three items of
5 additional evidence as well as three items of rebuttal material were
6 admissible pursuant to Rule 115 of the Rules. Hearings on appeal took
7 place between 23 and 26 March 2004. Additional evidentiary hearings took
8 place from 19 to 21 July 2004.
9 The events giving rise to this appeal took place within three
10 camps established at the Omarska and Trnopolje villages and at the
11 Keraterm factory, in the area of Prijedor, in northwest Bosnia and
12 Herzegovina. These camps were established shortly after the Serb takeover
13 of the city of Prijedor on 30 April 1992; their overriding purpose was to
14 hold individuals who were suspected of sympathising with the opposition to
15 the takeover.
16 Let me now turn to the Appellants.
17 Miroslav Kvocka was a professional police officer attached to the
18 Omarska police station at the time the Omarska camp was established. The
19 Trial Chamber found that Kvocka participated in the operation of the camp
20 as the functional equivalent of the deputy commander of the guard service
21 and that he had some degree of authority over the guards. Because of the
22 authority and influence which he exerted over the guard service, and the
23 limited attempts he made to prevent crime and alleviate the suffering of
24 detainees, as well as the significant role he played in maintaining the
25 functioning of the camp, despite his knowledge that it was a criminal
1 endeavour, Kvocka was found to be a co-perpetrator of the joint criminal
2 enterprise of the Omarska camp. Under Article 7(1) of the Statute, he was
3 found guilty of co-perpetrating persecutions under Article 5 of the
4 Statute, as well as murder and torture under Article 3 of the Statute.
5 The Trial Chamber sentenced him to a single sentence of seven years'
6 imprisonment for the crimes for which he was convicted.
7 Dragoljub Prcac was a retired policeman and a crime technician who
8 was mobilised to serve in the Omarska police station on 29 April 1992.
9 The Trial Chamber found that he was an administrative aide to the
10 commander of the Omarska camp for over three weeks and that, as such, he
11 was able to move unhindered through the camp. As a result of his
12 position, Prcac was found to have some influence over the guards. The
13 Trial Chamber found that he remained impassive when crimes were committed
14 in his presence and that, although not responsible for the behaviour of
15 guards or interrogators, he was still responsible for managing the
16 movement of detainees within the camp. The Trial Chamber concluded that
17 his participation in the camp, with full knowledge of what went on, was
18 significant and that his acts and omissions substantially contributed to
19 assisting and facilitating the joint criminal enterprise of the camp.
20 Pursuant to Article 7(1) of the Statute, the Trial Chamber found him
21 guilty of co-perpetrating persecution under Article 5 of the Statute, as
22 well as murder and torture under Article 3 of the Statute. The Trial
23 Chamber sentenced him to a single sentence of five years' imprisonment for
24 the crimes for which he was convicted.
25 Mladjo Radic was a professional policeman attached to the Omarska
1 police station. The Trial Chamber found that he took up his duties as
2 shift leader of the guards in the Omarska camp on approximately 28 May
3 1992 and that he remained there until the end of 19 August 1992. As a
4 guard shift leader, Radic was found to have been in a position of
5 substantial authority over guards on his shift. He used his power
6 selectively to prevent crimes, ignoring the vast majority of crimes
7 committed on his shift. The Trial Chamber noted that guards on his shift
8 were particularly brutal and that Radic personally committed sexual
9 violence against female detainees. The Trial Chamber found that Radic
10 played a substantial role in the functioning of the Omarska camp and that
11 he was a perpetrator of the joint criminal enterprise. He was found
12 guilty under Article 7(1) of the Statute as a co-perpetrator of the
13 following crimes committed as part of a joint criminal enterprise:
14 Persecutions under Article 5 of the Statute, and murder and torture under
15 Article 3 of the Statute. Mladjo Radic received a single sentence of
16 twenty years' imprisonment for his involvement at the Omarska camp.
17 Zoran Zigic was a civilian taxi driver who was mobilised to serve
18 as a reserve police officer. He worked for a short period of time in the
19 Keraterm camp as a guard and delivered supplies, and was also allowed to
20 enter the Omarska and Trnopolje camps. With regard to the Omarska camp,
21 the Trial Chamber found that Zigic regularly entered the camp specifically
22 to abuse detainees. Zigic's significant participation in the crimes at
23 the Omarska camp, coupled with his awareness of their persecutory nature
24 and the eagerness and aggressiveness with which he participated therein,
25 led the Trial Chamber to conclude that he was a co-perpetrator of the
1 joint criminal enterprise of the Omarska camp. The Trial Chamber also
2 found that Zigic committed persecutions, torture and murder at the
3 Keraterm camp and that these crimes were part of a widespread or
4 systematic attack against non-Serbs detained there, constituting crimes
5 against humanity. The Trial Chamber found further that Zigic entered
6 Trnopolje camp and abused detainees.
7 Pursuant to Article 7(1) of the Statute, Zigic was found guilty of
8 persecutions for crimes committed in the Omarska camp generally, and in
9 particular against specified individuals, as well as of crimes committed
10 by him in the Keraterm camp against specified individuals. Zigic was
11 found guilty of murder with respect to crimes committed in the Omarska
12 camp generally and against a specified individual. With regard to the
13 Keraterm camp, he was found guilty of murder with respect to specified
14 individuals. He was found guilty of torture with respect to crimes
15 committed in the Omarska camp generally and against specified individuals,
16 and with respect to crimes committed in the Keraterm camp against
17 specified individuals. He was found guilty of cruel treatment with
18 respect to crimes committed against a specified individual in the Omarska
19 camp and a specified individual in the Trnopolje camp. The Trial Chamber
20 sentenced Zoran Zigic to a single sentence of twenty-five years'
22 Let me now consider the grounds of appeal raised by the
24 All four Appellants share common grounds of appeal concerning
25 alleged insufficiency of reasoning on the part of the Trial Chamber,
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 issues relating to the Indictment, and questions concerning the doctrine
2 of joint criminal enterprise. These will be considered before turning to
3 the grounds of appeal specific to the individual Appellants.
4 Now, then, as to the common grounds of appeal.
5 First, the alleged insufficiency of reasoning. Several of the
6 Appellants contend that the Trial Chamber failed to give sufficient
7 reasons for their conviction.
8 The Appeals Chamber recalls that every accused has the right to a
9 reasoned opinion. However, the Trial Chamber is not under an obligation
10 to justify its findings in relation to every submission made during the
11 trial. It is to be presumed that the Trial Chamber evaluated all the
12 evidence presented to it, as long as there is no indication to the
13 contrary, which can happen, for instance, when there is a failure to refer
14 to something which clearly required to be noticed. In this respect, the
15 Appeals Chamber emphasises that it is necessary for an Appellant claiming
16 an error of law due to the lack of a reasoned opinion to identify the
17 specific factual findings or arguments which he submits the Trial Chamber
18 omitted to address and to explain why this omission invalidated the
19 decision. It is not possible to draw any inferences about the quality of
20 a judgement from the length of a judgement or from a comparison of the
21 length devoted to particular matters. These grounds of appeal are
23 Second, issues relating to the Indictment. Each of the appeals
24 contends that the Trial Chamber erred in law in convicting him of crimes
25 not properly pleaded in the Indictment, for which he therefore lacked
1 notice. The Appellants submit specifically that the Indictment failed to
2 plead joint criminal enterprise as a mode of liability.
3 It is established that the Statute requires the Prosecution to
4 plead in the Indictment all the material facts underpinning the charges in
5 the Indictment, but not the evidence by which the material facts are to be
6 proven. An Indictment is defective if it fails to plead material facts.
7 Whether or not a fact is considered material depends on the nature of the
8 Prosecution's case. If the Prosecution relies on a theory of joint
9 criminal enterprise, the Prosecutor must plead the purpose of the
10 enterprise, the identity of the participants, and the nature of the
11 participation of the accused in the enterprise. The Indictment should
12 also indicate which form of joint criminal enterprise is being alleged.
13 However, in some instances, the prejudicial effect of a defective
14 indictment can be remedied if the Prosecution has provided the accused
15 with clear, timely and consistent information detailing the factual basis
16 underpinning the charges against him, which compensates for the failure of
17 the Indictment to give proper notice of the charges.
18 The Appeals Chamber notes that joint criminal enterprise was not
19 pleaded in the initial or subsequent indictments against the Appellants.
20 The Appeals Chamber notes, however, that the Prosecution gave timely,
21 clear and consistent information to the Appellants. This information
22 detailed the factual basis of the charges against them and compensated for
23 the failure of the Indictment to give proper notice of the Prosecution's
24 intent to rely on joint criminal enterprise responsibility. The
25 Prosecution addressed the doctrine of joint criminal enterprise in its
1 pre-trial brief of 9 April 1999, the updated version of its pre-trial
2 brief, filed on 14 February 2000, its opening statement at trial, and its
3 further opening statement after the arrest of Prcac and the subsequent
4 adjournment of the trial. A consideration of the Appellants' trial
5 submissions further demonstrates that they were on notice of the
6 Prosecution's reliance on joint criminal enterprise during the trial
8 The Appellants Radic and Kvocka also contend that the Trial
9 Chamber erred by failing to make factual findings in respect of each
10 incident listed in the confidential schedules attached to the Indictment.
11 As the Appeals Chamber has noted previously, "schedules to an indictment
12 form an integral part of the indictment." The incidents or events
13 contained in the confidential schedules amount to material facts that have
14 to be proved before the accused can be held responsible for the crimes
15 contained in the Indictment. The Appeals Chamber notes that the Trial
16 Chamber made factual findings in relation to some of the incidents
17 detailed in the confidential schedules, and assured itself that instances
18 of each crime contained in the Indictment had been committed, but it did
19 not opt for a victim-by-victim or crime-by-crime analysis. The Appeals
20 Chamber is of the view that it would have been preferable if the Trial
21 Chamber had provided an exhaustive list of established incidents
22 underlying each of the crimes. However, the Appeals Chamber has been able
23 to find a great number of factual findings in the Trial Judgement
24 underpinning the crimes for which the Appellants have been found guilty by
25 the Trial Chamber.
1 The third common ground of appeal relates to joint criminal
2 enterprise. Each of the Appellants challenges the legal principles that
3 the Trial Chamber applied when it found that the Appellants participated
4 in a joint criminal enterprise. The Appeals Chamber affirms that joint
5 criminal enterprise is a form of commission under Article 7(1) of the
6 Statute requiring a plurality of co-perpetrators who act pursuant to a
7 common purpose involving the commission of a crime in the Statute. Three
8 forms of joint criminal enterprise have been recognised by the
9 International Tribunal's jurisprudence. At issue in this case was the
10 second form of joint criminal enterprise, the "systemic" form,
11 characterised by the existence of an organised criminal system, in
12 particular in the case of concentration or detention camps. This form of
13 joint criminal enterprise requires personal knowledge of the organised
14 system and intent to further the common criminal purpose of that system.
15 The submissions of the Appellants raise questions concerning the
16 proper distinction between co-perpetration by means of a joint criminal
17 enterprise and aiding and abetting a joint criminal enterprise. The Trial
18 Chamber considered that a co-perpetrator of a joint criminal enterprise
19 shares the intent to carry out a joint criminal enterprise and actively
20 furthers the enterprise. An aider or abettor, on the other hand, does not
21 share the intent of the participants; he need only be aware that his
22 contribution assists or facilitates a crime committed by the other
23 participants. The Trial Chamber held that the shared intent may be
24 inferred from knowledge of the criminal nature of the enterprise and the
25 continued significant participation therein. It acknowledged that there
1 may be difficulties in distinguishing between an aider or abettor and a
2 co-perpetrator, in particular in the case of mid-level accused who did not
3 physically commit the crimes. When, however, an accused participated in a
4 crime that advanced the goals of the criminal enterprise, the Trial
5 Chamber considered him more likely to be held responsible as a
6 co-perpetrator than as an aider or abettor.
7 Each of the Appellants also raises questions concerning the level
8 of contribution required of a participant in a joint criminal enterprise.
9 In particular, they argue that a significant contribution can be inferred
10 from their position in the camp. The Appeals Chamber first notes that a
11 participant in the joint criminal enterprise need not physically
12 participate in any element of any crime. The Appeals Chamber also
13 considers that there is no specific legal requirement for the accused to
14 make a substantial contribution to the joint criminal enterprise. In
15 practice, however, the significance of the accused's contribution will be
16 relevant to demonstrating that he shared the intent to pursue the common
17 purpose. The Appeals Chamber also affirms that the de facto or de jure
18 position of employment within the camp is only one of the contextual
19 factors to be considered by the Trial Chamber in determining whether an
20 accused participated in the common purpose. A position of authority,
21 however, may be relevant to establishing the accused's awareness of the
22 system, his participation in enforcing or perpetuating the common criminal
23 purpose of the system, and, eventually, for evaluating the accused's level
24 of participation for sentencing purposes.
25 Each of the Appellants suggests that he lacked the necessary
1 intent to further the joint criminal enterprise, and that he was merely
2 doing his job. The Appeals Chamber notes that it has repeatedly confirmed
3 the distinction between intent and motive. Shared criminal intent does
4 not require the co-perpetrator's personal satisfaction or enthusiasm or
5 his personal initiative in contributing to the joint enterprise.
6 Another legal issue raised in the Appellants' submissions is the
7 question whether the Prosecution must prove an agreement between the
8 accused and other participants in the joint criminal enterprise. The
9 Appeals Chamber considers the jurisprudence on this issue to be clear.
10 Joint criminal enterprise requires the existence of a common purpose which
11 amounts to or involves the commission of a crime. The common purpose need
12 not be previously arranged or formulated; it may materialise
14 Implicit in a number of the Appellants' arguments is the
15 suggestion that they should not be held responsible for crimes committed
16 when they were not present at the camp. A co-perpetrator in a joint
17 criminal enterprise need not physically commit any part of the actus reus
18 of the crime involved, nor is the participant in a joint criminal
19 enterprise required to be physically present when and where the crime is
20 being committed. While it is legally possible for an accused to be held
21 liable for crimes committed outside of his or her presence, the
22 application of this possibility in a given case depends on the evidence.
23 And I now turn to my good friend Judge Pocar and invite him to
24 continue the reading of the summary.
25 JUDGE POCAR: Thank you.
1 The Appeals Chamber now turns to the grounds of appeal specific to
2 the individual Appellants.
3 For reasons of practicality, the Appeals Chamber addresses the
4 Appellants' grounds of appeal in a different order from that which appears
5 in their briefs. In this summary, only their main arguments are
7 First, as to the Appellant Kvocka:
8 Kvocka contends that the Trial Chamber erred in its consideration
9 of his interview with the Prosecution. He argues that evidence of the
10 interview should not have been admitted, and that, contrary to the finding
11 of the Trial Chamber, it did not support the proposition that there were
12 shift leaders in the Omarska camp.
13 The Appeals Chamber does not consider that the Trial Chamber erred
14 in admitting evidence on Kvocka's interview. As to the reading of the
15 record of the interview, the Appeals Chamber finds that a reasonable trier
16 of fact could have drawn the same inference as that drawn by the Trial
17 Chamber. This ground of appeal is thus dismissed.
18 As his second ground of appeal, Kvocka submits that the Trial
19 Chamber erred in finding that he had the de facto status of a deputy
20 commander of the guard service. He argues that the evidence did not prove
21 this beyond reasonable doubt and challenges the evidence of certain
22 witnesses. He also contends that he was not the deputy of Meakic, the
23 commander of the Omarska police station at that time, and did not replace
24 Meakic in his absence.
25 The Appeals Chamber finds Kvocka's challenge to be without merit.
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 Kvocka has not demonstrated that no reasonable trier of fact could arrive
2 at the conclusion that he held a de facto position of authority in the
3 camp. The Trial Chamber based its finding on the evidence of a number of
4 witnesses. For the most part, Kvocka's challenge to their testimony does
5 not succeed. A reasonable trier of fact could conclude from Kvocka's own
6 testimony that he acted as Meakic's deputy on the occasions on which
7 Meakic was absent. The Appeals Chamber also notes that, as Kvocka was
8 charged in the Amended Indictment with liability under Article 7(1) of the
9 Statute, his formal position in the police hierarchy as commander or
10 deputy commander is immaterial to his responsibility. A person does not
11 need to hold a formal position in a hierarchy to incur liability under
12 Article 7(1). This ground of appeal is dismissed.
13 Kvocka submits that the Trial Chamber erred in finding the
14 requisite actus reus and mens rea to establish his responsibility as a
15 co-perpetrator in a joint criminal enterprise. Specifically, Kvocka
16 argues that when he was working in the Omarska camp, he was not aware of
17 the common criminal purpose and did not intend to further the system of
19 The Appeals Chamber observes that the Trial Chamber found that
20 Kvocka had served in the camp from about 29 May 1992 to 23 June 1992 and
21 that he was absent from 2nd to 6th June 1992 and, again, from 16 to 19
22 June 1992; that he held a high-ranking position in the camp and had some
23 degree of authority over the guards; that he had sufficient influence to
24 prevent or halt some of the abuses but that he made use of that influence
25 only very rarely; that he carried out his tasks diligently, participating
1 actively in the running of the camp; and that, through his own
2 participation, in the eyes of the other participants, he endorsed what was
3 happening in the camp. Kvocka had not shown how the Trial Chamber's
4 findings were unreasonable. It is clear that, through his work in the
5 camp, Kvocka contributed to the daily operation and maintenance of the
6 camp and that, in doing so, he allowed the system of ill-treatment to
7 perpetuate itself.
8 Even though Kvocka may have participated in the joint criminal
9 enterprise at the outset without being aware of its criminal nature, the
10 facts of the case prove that he could not have failed to become aware of
11 it later on. The Appeals Chamber agrees with the Trial Chamber's argument
12 that, given the absence of direct evidence, his intent may be inferred
13 from the circumstances, for example, relating to his authority in the
14 camp, to his knowledge of the crimes being perpetrated in the camp, and to
15 his continued participation in the functioning of the camp. The Appeals
16 Chamber holds that a reasonable trier of fact could have inferred from the
17 facts found by the Trial Chamber that Kvocka shared the intent to further
18 the common criminal purpose. For these reasons, the Appeals Chamber
19 considers that the Trial Chamber did not err in finding Kvocka guilty as a
20 co-perpetrator of crimes committed as part of the joint criminal
21 enterprise. This ground of appeal is dismissed.
22 Kvocka submits that the Trial Chamber erred in finding him guilty
23 of the crime of murder. He argues that the Trial Chamber did not evaluate
24 the evidence relating to the charge of murdering prisoners in Omarska
25 between 24 May and 30 August 1992; he contends that the Trial Chamber
1 failed to establish the existence of any acts or omissions by him in
2 relation to each victim's death.
3 The Appeals Chamber must first consider the temporal limitation on
4 Kvocka's liability. The Appeals Chamber concurs with Kvocka that the
5 Trial Chamber decided not to hold him responsible for the crimes committed
6 before his arrival in the camp. The Trial Chamber also considered that he
7 could not be held responsible for the crimes committed after he left the
8 camp. However, the Appeals Chamber considers that the Trial Chamber did
9 not limit Kvocka's responsibility to those days when he effectively worked
10 in the camp but held him responsible for the crimes committed in the camp
11 during the time that he was employed there, whether or not he was actually
12 in the camp.
13 To find an accused guilty of the crime of murder committed as part
14 of a joint criminal enterprise, it is not necessary to establish his
15 physical participation in the murder. It is sufficient to prove that the
16 death of the victim was the result of implementing a joint criminal
17 purpose and the responsibility of the accused in furthering that purpose.
18 The Appeals Chamber finds that the Trial Chamber did not err in finding
19 Kvocka guilty of the crime of murder without establishing his physical
20 participation in each murder.
21 Kvocka submits that the Trial Chamber erred in finding him guilty
22 of a number of specified murders. For the reasons set forth in the
23 Judgement, the Appeals Chamber upholds Kvocka's arguments as regards the
24 murders of Ahil Dedic and Ismet Hodzic and dismisses the remainder. The
25 Appeals Chamber considers that these two errors do not invalidate Kvocka's
1 conviction for murder under Count 5 insofar as it upholds Kvocka's
2 convictions for the murders of Mehmedalija Nasic and Becir Medunjanin.
3 Kvocka submits that the Trial Chamber erred in finding him
4 responsible for the torture of detainees in the Omarska camp.
5 Contrary to Kvocka's allegation, the Appeals Chamber observed that
6 the Trial Chamber did not require that at least one of the perpetrators of
7 the act of torture be a public agent. The Appeals Chamber also considers
8 that the Trial Chamber did not commit an error of law in not so requiring
9 in light of Kunarac Appeal Judgement. For reasons stated in the
10 Judgement, the Appeals Chamber rejects Kvocka's challenges relating to
11 particular instances of torture.
12 Kvocka contends that the Trial Chamber erred in finding him guilty
13 of persecutions as a crime against humanity. He argues that acts of
14 persecution must be of equal gravity or severity to other acts enumerated
15 under Article 5 of the Statute and that, as a result, acts of harassment,
16 humiliation and psychological abuse do not constitute the crime of
17 persecution. He submits that the Prosecution did not prove beyond
18 reasonable doubt that the alleged rapes and sexual assaults happened
19 during his stay in the camp. He also argues that, since it was impossible
20 for him to influence the imprisonment or release of detainees, he should
21 not have been held responsible for confinement in inhumane conditions.
22 Kvocka further contends that the Trial Chamber erred in convicting
23 him of persecutions as a crime against humanity as the Prosecution did not
24 prove beyond reasonable doubt that he possessed the necessary
25 discriminatory intent. He points out that he is married to a Bosnian
1 Muslim and had close association with non-Serbs; that he is a member of
2 the moderate Reformist Party of Ante Markovic; and that he was released
3 from the Omarska camp after being considered a traitor and suspected of
4 supporting Bosnian Muslims.
5 The Appeals Chamber has no doubt that, in the context in which
6 they were committed and taking into account their cumulative effect, the
7 acts of harassment, humiliation, and psychological abuse as found by the
8 Trial Chamber are acts which, by their gravity, constitute material
9 elements of the crime of persecution. The Appeals Chamber also considers
10 that it is of no consequence that Kvocka was unable to prevent certain
11 crimes since his contribution to the joint criminal enterprise
12 encompassing those crimes has been established.
13 As regards the rapes and sexual assaults, the Appeals Chamber
14 finds that the Trial Chamber erred in convicting Kvocka of these crimes
15 given that it failed to determine whether they occurred during Kvocka's
16 period of employment at the Omarska camp. The Appeals Chamber thus
17 upholds this part of Kvocka's ground of appeal and invalidates his
18 conviction for rape and sexual assault as persecutions.
19 The Appeals Chamber recalls its earlier conclusion that the Trial
20 Chamber did not err in finding that Kvocka had the intent to contribute to
21 the joint criminal enterprise of the Omarska camp. The Appeals Chamber is
22 of the opinion that, in the context of this particular case, the intent to
23 contribute to the joint criminal enterprise and discriminatory intent is
24 one and the same thing. Hence the Appeals Chamber considers that the
25 Trial Chamber did not commit an error in concluding that Kvocka had the
1 requisite discriminatory intent. Save for the section of the ground of
2 appeal relating to rape and sexual assault, this ground of appeal is
4 Now for the Appellant Radic.
5 Radic submits that the Trial Chamber violated his right to a fair
6 and impartial trial by failing to make factual findings in respect of each
7 incident listed in the confidential schedules. After considering in
8 detail the factual findings of the Trial Chamber, the Appeals Chamber
9 finds that, contrary to Radic's allegations, the Trial Chamber did not
10 find him guilty of certain crimes alleged in the Indictment without
11 establishing at least some of the facts underlying each of those counts.
12 This ground of appeal is accordingly dismissed.
13 Radic challenges his conviction for persecution as a crime against
14 humanity. He argues that there must be discriminatory consequences to
15 hold an act discriminatory, and that it is not sufficient to establish
16 that he was aware of his acts being discriminatory but that he must have
17 consciously intended to discriminate. Radic contests the Trial Chamber's
18 conclusion that the individual discriminatory intent required for the
19 crime of persecution could be inferred from the discriminatory character
20 of the Omarska camp.
21 The Appeals Chamber considers that, in light of the circumstances,
22 there is no doubt that the underlying crimes were committed on
23 discriminatory grounds, and had discriminatory effects. The Appeals
24 Chamber agrees with Radic that the discriminatory intent of crimes cannot
25 be inferred directly from the general discriminatory nature of an attack
1 characterised as a crime against humanity. However, the discriminatory
2 intent may be inferred from the context of the attack, provided it is
3 substantiated by the surrounding circumstances of the crime.
4 Radic also argues that he did not share the goal of the
5 discriminatory policy, but that he reluctantly served in the camp only
6 because of the explicit orders of his superior. It appears to the Appeals
7 Chamber that Radic fails to distinguish motive from intent. The Appeals
8 Chamber finds that it was reasonable for the Trial Chamber to conclude
9 that Radic acted with discriminatory intent from his knowledge of the
10 persecutory nature of the crimes and his knowing participation in the
11 system of persecution pervading the camp. This ground of appeal is
12 therefore dismissed.
13 Radic challenges various factual findings of the Trial Chamber,
14 notably its finding regarding his position within the camp. He submits
15 that the Trial Chamber did not establish beyond reasonable doubt that he
16 was the shift leader of guards and that he held a position of authority.
17 He contends that he offered assistance to detainees "when it was possible"
18 and not from a position of authority, and further that he had no effective
19 control over the guards on his shift. The Appeals Chamber notes that the
20 Trial Chamber relied on the statements of a large number of witnesses to
21 establish Radic's position in the camp. A close reading of the witnesses'
22 statements on which Radic relies to challenge the Trial Chamber's
23 conclusion shows that they do not support his submissions. Radic thus
24 fails to establish that no reasonable tribunal of fact could have arrived
25 at the Trial Chamber's finding.
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 Radic also challenges the Trial Chamber's finding that he raped,
2 attempted to rape and committed sexual violence against certain
3 individuals. After considering Radic's arguments and reviewing the
4 relevant evidence, for the reasons laid out in the Judgement, the Appeals
5 Chamber dismisses Radic's contentions.
6 In this ground of appeal, Radic also contests the Trial Chamber's
7 application of the joint criminal enterprise doctrine to his case. Radic
8 disputes the Trial Chamber's finding that the Omarska camp functioned as a
9 joint criminal enterprise. He argues that, according to the Trial
10 Chamber's findings, anarchy and lawlessness prevailed in the camp. Thus,
11 in his view, it is doubtful if a common design existed at all. Even if
12 one existed, he submits, the Appellants were not aware of it and did not
13 participate in its formulation. He also submits that he did not willingly
14 or intentionally participate in the maintenance of the camp. On the
15 contrary, he submits that he considered the camp solely his place of work,
16 to which he was assigned by order of his superiors.
17 Radic's argument as to the lawlessness and anarchy in the camp is
18 inapposite. The existence of the camp and the organisation of the guard
19 service required a certain amount of organisation. In fact, with regard
20 to the intent of persecution of the non-Serb population in the Prijedor
21 area, the camp functioned with terrible efficiency. The lawlessness and
22 anarchy referred to by the Trial Chamber were an integral part of the
23 workings in the camp; these elements allowed the guards to maltreat the
24 detainees at will, but that did not mean that they acted like a
25 disorganised mob outside the joint criminal enterprise. The Appeals
1 Chamber notes that Radic acknowledges that he was aware of the crimes
2 committed in the camp. His argument that he worked in the camp because of
3 his orders and of his fear of the consequences of disobeying them confuses
4 intent and motive. As long as he participated in the functioning of the
5 camp knowingly and willingly, his motives for doing so are irrelevant to
6 the finding of his guilt. For these reasons, this ground of appeal is
8 JUDGE SHAHABUDDEEN: I invite my colleague, Judge Mumba, to take
9 the floor.
10 JUDGE MUMBA: Thank you.
11 Next, for the Appellant Zigic.
12 In several instances, Zigic has asked the Appeals Chamber to
13 consider his final trial brief as forming part of his appeal brief. The
14 Appeals Chamber recalls that an Appellant is obliged to provide the
15 Appeals Chamber with exact references to paragraphs in judgements,
16 transcript pages, exhibits or authorities, to which reference is made so
17 that the Appeals Chamber may fulfil its mandate in an efficient way.
18 General references to the submissions made during trial clearly do not
19 fulfil this requirement and will be disregarded by the Appeals Chamber.
20 Zigic raises objections relating to the Indictment. The Appeals
21 Chamber understands him to be concerned about the form of the Indictment,
22 in particular, the use schedules, which he alleges have led to confusion
23 and have hampered his defence. The Appeals Chamber gathers that he is
24 saying that he was not properly charged with some of the crimes of which
25 he was convicted.
1 In order to address Zigic's complaints, the Appeals Chamber has to
2 determine whether the Trial Chamber returned convictions on the basis of
3 material facts not pleaded in the Amended Indictment; and, if the Appeals
4 Chamber finds that the Trial Chamber did rely on such facts, whether the
5 trial of Zigic was thereby rendered unfair. After considering the
6 specific cases cited by Zigic, for the reasons indicated in the Judgement,
7 the Appeals Chamber concludes that Zigic did not suffer any prejudice from
8 the vagueness in the Indictment.
9 Zigic argues that the Trial Chamber erred in law by applying an
10 incorrect legal standard in determining whether he had the necessary mens
11 rea for persecution. He also submits that the Trial Chamber's findings
12 did not support the conclusion that he acted with discriminatory intent.
13 Furthermore, he argues that the Trial Chamber erred because the rationale
14 behind the persecution was not religion or ethnicity but the issue of
16 The Appeals Chamber finds that there is no basis for Zigic's claim
17 that the Trial Chamber erred in law in its definition of discrimination.
18 The Appeals Chamber also considers that Zigic fails to identify any
19 evidence to support his argument relating to secession. The trial record
20 does not support this view; no witness mentioned that he was ever asked
21 about his opinion regarding the secession. The Appeals Chamber notes that
22 there was a large amount of evidence before the Trial Chamber reasonably
23 allowing the conclusion that the detainees in the camps of Omarska,
24 Keraterm, and Trnopolje were detained there because they were members of a
25 group defined by "religion, politics and ethnicity."
1 The last majority of Zigic's grounds of appeal concern challenges
2 to his convictions for the murders of particular individuals, the torture
3 of specific persons and the beatings of named victims. After carefully
4 reviewing the Trial Judgement and the evidence pertaining to these
5 challenges, for the reasons contained in the Judgement of the Appeals
6 Chamber, the latter rejects Zigic's contentions as regards all the
7 individuals concerned.
8 In addition to the conviction for particular crimes, the Trial
9 Chamber found Zigic responsible "for the crimes committed in the Omarska
10 camp generally" with respect to persecution, murder and torture. Zigic
11 challenges this, arguing that the factual findings of the Trial Chamber do
12 not support this, and that the Trial Chamber erred in finding that his
13 contribution to the functioning of the camp was significant.
14 The Appeals Chamber is of the opinion that a person need not have
15 any official function in the camp or belong to the camp personnel to be
16 held responsible as a participant in the joint criminal enterprise. It
17 may be argued that the possibility of opportunistic visitors entering the
18 camp and maltreating the detainees at random added to the atmosphere of
19 oppression and fear pervading the camp. However, in such a case, a
20 significant contribution to the overall effect of the camp is necessary to
21 establish responsibility under the joint criminal enterprise doctrine.
22 The Appeals Chamber does not wish to minimise the gravity of the crimes
23 which Zigic committed in the camp; they are serious violations of
24 international humanitarian law. On the other hand, the Trial Chamber
25 found that a "regular stream of murders, tortures, and other forms of
1 physical and mental violence" pervaded the camp, and that "extreme
2 brutality was systematic in the camps." The violence was not confined to
3 a small group of perpetrators. The incidents in which Zigic participated,
4 despite their quality of being grave crimes, formed only mosaic stones in
5 the general picture of violence and oppression. The Appeals Chamber finds
6 that, in the absence of further evidence of Zigic's participation in the
7 functioning of the camp, no reasonable tribunal of fact could, based on
8 the evidence before the Trial Chamber, come to the conclusion that Zigic
9 participated in the joint criminal enterprise. His conviction for the
10 crimes committed in this camp "in general" is quashed.
11 Finally, the Appeals Chamber turns to the Appellant Prcac.
12 Prcac submits that the Trial Chamber effectively accepted all of
13 his arguments. As a result, Prcac contends that the Trial Chamber should
14 have acquitted him of all charges. The Appeals Chamber considers it to be
15 evident from the list of findings contained in the Trial Judgement that
16 the Trial Chamber did not accept all of Prcac's arguments. This ground of
17 appeal therefore fails.
18 Next, Prcac focuses on what he terms the "identity between the
19 indictment and the Trial Judgement." He submits that the Trial Chamber
20 made a number of findings of fact which were not pleaded in the
21 Indictment. The Appeals Chamber notes that Prcac has not set out in
22 detail the inconsistencies between the Indictment and the Trial Judgement
23 that are subject to appeal, except for the reference to the finding that
24 he was an administrative aide. In the Indictment, Prcac was alleged to
25 have arrived in the Omarska camp to replace Kvocka as deputy camp
1 commander. However, the Trial Chamber found that he was not deputy camp
2 commander but was, in fact, an administrative assistant to the "security
3 commander" of the camp. Prcac argues that by ignoring the parameters of
4 the Indictment and finding that he had fulfilled the functions of an
5 administrative assistant, the Trial Chamber improperly took on the role of
6 the Prosecutor and convicted him on the basis of facts with which he was
7 not charged.
8 The Appeals Chamber notes that the issue raised is whether the
9 finding that Prcac was an administrative assistant bears on his
10 responsibility for the crimes committed in the Omarska camp. The Appeals
11 Chamber also notes that the description of Prcac's duties contained in the
12 Trial Judgement was not contradicted by the Defence at trial; rather, it
13 was confirmed. Prcac even referred to him as an "administrative worker"
14 in his final trial brief. Prcac has therefore failed to show that no
15 reasonable trier of fact could have reached the finding of the Trial
16 Chamber that he was an administrative aide at the camp. More importantly,
17 the Appeals Chamber considers that the title of administrative aide used
18 by the Trial Chamber to describe him is not material to the finding that
19 he was a co-perpetrator in a joint criminal enterprise. The Trial Chamber
20 did not consider the fact of being an administrative aide to be indicative
21 of criminal responsibility. The title itself was given only to sum up his
22 duties, which were different from those of the other guards or their
23 superiors. The Trial Chamber correctly assigned responsibility on the
24 basis of Prcac's actual duties rather than on the basis of a mere
25 descriptive label. The Appeals Chamber considers that Prcac had failed to
1 show that no reasonable trier of fact could have reached the finding of
2 the Trial Chamber that he contributed to the joint criminal enterprise at
3 the Omarska camp in a significant way. Accordingly, this ground of appeal
4 is dismissed.
5 Prcac alleges that a number of errors of fact and law were
6 committed by the Trial Chamber relating to his administrative function,
7 his role in the preparation and reading of lists of detainees and other
8 errors. He submits that, had such errors not been committed, the Trial
9 Chamber "would have certainly rendered a judgement of acquittal."
10 Prcac argues that the Trial Chamber erroneously ascertained from
11 his pre-trial brief that he was essentially claiming that he was merely an
12 administrative aide to Zeljko Meakic in the Omarska camp. Prcac contends
13 that he never claimed this, only that he performed administrative work on
14 an ad hoc basis. The Appeals Chamber finds that Prcac's argument is
15 unfounded. The Trial Chamber never stated that Prcac claimed to have held
16 a formal administrative position. In asserting that the Defence was, in
17 essence, claiming that Prcac was merely an administrative aide, the Trial
18 Chamber was simply summing up the nature of Prcac's duties at the camp on
19 the basis of the evidence presented at trial, including Prcac's own
20 submission that he worked as an"administrative worker." The Trial
21 Chamber's assessment of that evidence is entirely reasonable.
22 Prcac also argues that the Trial Chamber erroneously ascertained
23 that "many prosecution witnesses supported Prcac's description of his
24 administrative duties in the camp." According to Prcac, none of these
25 witnesses described his duties as being administrative, nor did anything
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 in their trial testimony indicate that he was "in charge of administrative
2 work" at the camp. In view of the Appeals Chamber, the Trial Chamber's
3 finding that Prcac was an administrative aide was based on the nature of
4 the tasks he performed in the camp, as described by numerous Prosecution
5 witnesses, as well as by Prcac himself, and not on any label used to
6 describe these tasks. Moreover, since Prcac was never found by the Trial
7 Chamber to have held a formal position of "administrative aide," the
8 Appeals Chamber is of the view that the lack of more explicit references
9 in the evidence presented at trial to the administrative nature of Prcac's
10 work at the camp is immaterial.
11 In addition, Prcac challenges the Trial Chamber's findings on his
12 responsibility for the handling of lists of detainees who were to be
13 interrogated, transferred, exchanged or released. The Appeals Chamber
14 cannot find any error on the part of the Trial Chamber in this regard.
15 The Appeals Chamber points out that the handling of lists of detainees was
16 found to have been one of Prcac's tasks at the camp which, together with
17 the other tasks he was found to have performed, was indicative of the
18 nature of his duties and position of authority at the camp. As such, the
19 Appeals Chamber finds no reason to disturb the findings of the Trial
20 Chamber on this matter. Prcac also objects to the Trial Chamber's
21 findings regarding his reading out of the lists of detainees. The Appeals
22 Chamber finds that Prcac's arguments to be without merit. The Trial
23 Chamber never stated that Prcac claimed to have performed that task on a
24 frequent basis or that he was the only one doing so. Furthermore, the
25 Appeals Chamber observes that the occasions on which Prcac was found to
1 have read out lists of detainees were merely considered by the Trial
2 Chamber to have provided evidence of the nature of his duties at the camp
3 and no way constituted a crime for which he was convicted. Prcac claims
4 that, as he had no knowledge of the fate of the detainees who, after being
5 called out from the lists, were never seen again, the Trial Chamber erred
6 in holding him criminally responsible for what happened to them. The
7 Appeals Chamber points out that Prcac was not found to have been
8 accountable for any specific crimes against detainees. Rather, he was
9 found to have participated in a joint criminal enterprise of persecution
10 at Omarska camp. Accordingly, whether or not Prcac was aware of the fate
11 of the detainees who were never seen again is immaterial to his criminal
12 responsibility under Article 7(1) of the Statute.
13 Further, Prcac argues that the Trial Chamber's conclusion that he
14 did not work at the camp under duress was incorrect. Referring to the
15 Trial Chamber's finding that he "never mentioned any threats when he was
16 interviewed by the Prosecution," he submits that he did state in his
17 interview with the Prosecution that he went to the camp under threat, that
18 he raised this again in the pre-trial brief and opening statement, and
19 that two witnesses corroborated his assertion. The Appeals Chamber notes
20 that the assertion that Prcac never mentioned any threats in his interview
21 with the Prosecution was only one of the factors relevant to the Trial
22 Chamber's finding. In light of the totality of material available to the
23 Trial Chamber, the Appeals Chamber is of the view that Prcac has not
24 established that no reasonable trier of fact could have found that he did
25 not work at the camp under duress.
1 Prcac argues that, in the Trial Judgement, the Trial Chamber did
2 not provide "a single explanation" as to the credibility of witnesses, or
3 as to whether it accepted as credible, and, if so, to what degree, the
4 testimony of a certain witness. In particular, he claims that the Trial
5 Chamber erred in not explaining whether it believed the testimony of
6 witness Jesic and himself.
7 The Appeals Chamber notes that, contrary to Prcac's argument, the
8 Trial Judgement is full of references relating to the assessment of the
9 credibility of witnesses. In any event, the Appeals Chamber considers
10 that the Trial Judgement need not contain findings as to the credibility
11 of each and every witness heard. The Appeals Chamber also notes that
12 Prcac is not arguing that some or all of the Prosecution witnesses were
13 not eyewitnesses or that they did not have first-hand knowledge about what
14 they testified to before the Trial Chamber. Prcac has therefore failed to
15 make out a factual or legal error.
16 Prcac also alleges that the testimony of certain witnesses was
17 inconsistent with the "real situation" and contained "falsehoods." The
18 Appeals Chamber considers that Prcac does not identify any particular
19 finding of the Trial Chamber he is challenging through this sub-ground and
20 fails to identify the material fact with respect to which these witnesses
21 allegedly gave false evidence. This ground of appeal is thus dismissed.
22 Finally, Prcac claims that there was a breach of his right to a
23 fair trial since he was not given adequate time to prepare for
24 cross-examination and presentation of the evidence of ten witnesses. The
25 Appeals Chamber considers that this issue was raised before the Trial
1 Chamber and finally disposed of by it; at times the Appeals Chamber itself
2 decided the matter during the trial on interlocutory appeal. There is,
3 furthermore, no merit in Prcac's submissions regarding the delayed
4 disclosure or the revision of witness lists.
5 Prcac also argues that the Trial Chamber failed to rule on the
6 motion of the Defence for access to trial transcripts from the Sikirica
7 case. The Appeals Chamber notes that the oral motion for Prcac was raised
8 in court on 28 May 2001, and that the Trial Chamber made an oral ruling on
9 it immediately. Prcac has failed to show any error on the part of the
10 Trial Chamber in connection with the oral motion in question. For these
11 reasons, this ground of appeal is dismissed.
12 The Appeals Chamber will now turn to the question of sentencing.
13 All the Appellants appeal their sentences. Kvocka considers that
14 the Trial Chamber failed to take certain mitigating factors into account
15 when it determined his sentence and that his sentence is
16 disproportionately high in comparison with other sentences imposed by the
17 Tribunal. Prcac contends that the Trial Chamber failed to take a number
18 of mitigating circumstances into account when determining his sentence and
19 that, as a result, the sentence imposed by the Trial Chamber was too
20 severe. Radic argues that there is insufficient reasoning on the part of
21 the Trial Chamber to justify his sentence, that the Trial Chamber
22 erroneously took into consideration certain aggravating factors, that
23 insufficient weight was afforded to certain mitigating factors and that a
24 comparison of his sentence with other sentences imposed by the Tribunal
25 indicates that his sentence should be reduced. Zigic submits that the
1 Trial Chamber failed to take a number of mitigating circumstances into
3 The Appeals Chamber reiterates that sentencing is essentially a
4 discretionary process on the part of the Trial Chamber. Appellate
5 proceedings do not constitute a trial de novo and are, rather, of a
6 corrective nature. For these reasons, the Appeals Chamber will not
7 substitute its own sentence for that imposed by the Trial Chamber unless
8 it can be shown that the Trial Chamber made a discernible error. The
9 Appeals Chamber finds that the Trial Chamber committed an error when it
10 declined to consider Zigic's voluntary surrender to the Tribunal a
11 mitigating factor. However, little weight will be given to this
12 mitigating circumstance given that Zigic was in prison at the time of his
13 surrender. Aside from this, the Appellants' grounds of appeal relating to
14 their sentences are dismissed.
15 JUDGE SHAHABUDDEEN: I thank Judge Mumba for her contribution to
16 the reading of the summary. And now if I may sum up.
17 For the reasons set forth above in the summary, which are more
18 fully explored in the Judgement, for these reasons, the appeal of Kvocka
19 with respect to the conviction for the murder of Ahil Dedic and Ismet
20 Hodzic and the conviction for rape and sexual assault as persecution is
21 allowed. The appeal of Zigic with respect to his conviction for crimes in
22 the Omarska camp in general is also allowed, as well as his sub-ground of
23 appeal relating to the failure of the Trial Chamber to treat voluntary
24 surrender as a mitigating factor. All other grounds of appeal of the
25 Appellants are dismissed.
1 I shall now read out in full the operative paragraphs of the
2 Appeals Chamber's Judgement, that is, the disposition. In the customary
3 way, I would now invite the Appellants to stand.
4 [The appellants stands]
5 JUDGE SHAHABUDDEEN: For the foregoing reasons, the Appeals
6 Chamber, pursuant to Article 25 of the Statute and Rules 117 and 118 of
7 the Rules of Procedure and Evidence;
8 Noting the respective written submissions of the parties and the
9 arguments they presented at the hearings of 23 to 26 March 2004 and 21
10 July 2004;
11 Sitting in open session;
12 Unanimously, with respect to Kvocka's grounds of appeal:
13 Notes that Kvocka's first ground of appeal has been withdrawn;
14 Allows, in part, Kvocka's fourth ground of appeal insofar as it
15 relates to his conviction as the co-perpetrator of persecution for rape
16 and sexual assault under Count 1 of the Indictment, reverses his
17 conviction pursuant to Article 7(1) of the Statute under Count 1, that is
18 to say, persecution, a crime against humanity, insofar as this conviction
19 relates to rape and sexual assault, and affirms his remaining conviction
20 pursuant to Article 7(1) of the Statute under Count 1;
21 Allows, in part, Kvocka's fifth ground of appeal insofar as it
22 relates to the murder of Ahil Dedic and Ismet Hodzic, reverses his
23 conviction pursuant to Article 7(1) of the Statute under Count 5 (murder
24 as a violation of the laws or customs of war) insofar as this conviction
25 relates to the murder of Ahil Dedic and Ismet Hodzic, and affirms his
1 conviction pursuant to Article 7(1) of the Statute under Count 5 for the
2 murder of Mehmedalija Nasic and Becir Medunjanin;
3 Dismisses Kvocka's remaining grounds of appeal against convictions
4 in all other respects;
5 Dismiss misses Kvocka's appeal against sentence, and affirms the
6 sentence of seven years' imprisonment as imposed by the Trial Chamber.
7 With respect to Radic's grounds of appeal:
8 Dismisses all of Radic's grounds of appeal and affirms the
9 sentence of twenty years of imprisonment as imposed by the Trial Chamber.
10 With respect to Zigic's grounds of appeal:
11 Allows Zigic's grounds of appeal concerning his responsibility for
12 crimes committed in the Omarska camp generally, reverses his conviction
13 pursuant to Article 7(1) of the Statute under Count 1 (persecution as a
14 crime against humanity) insofar as this conviction relates to the crimes
15 committed in the Omarska camp generally, reverses his conviction pursuant
16 to Article 7(1) of the Statute under Count 7 (murder as a violation of the
17 laws or customs of war) insofar as this conviction relates to the crimes
18 committed in the Omarska camp generally, reverses his conviction pursuant
19 to Article 7(1) of the Statute under Count 12 (torture as a violation of
20 the laws or customs of war) insofar as this conviction relates to the
21 crimes committed in the Omarska camp generally, and affirms his conviction
22 pursuant to Article 7(1) of the Statute under Count 1 insofar as his
23 conviction relates to the crimes committed against Becir Medunjanin, Asef
24 Kapetanovic, Witnesses AK, AJ, T, Abdulah Brkic, Emir Beganovic, Fajzo
25 Mujkanovic, Witness AE, Redzep Grabic, Jasmin Ramadanovic, Witness V, Edin
1 Ganic, Emsud Bahonjic, Drago Tokmadzic, and Sead Jusufagic, affirms his
2 conviction pursuant to Article 7(1) of the Statute under Count 7 insofar
3 as his conviction relates to the crimes committed against Becir
4 Medunjanin, Drago Tokmadzic, Sead Jusufagic and Emsud Bahonjic, and
5 affirms his conviction pursuant to Article 7(1) of the Statute under Count
6 12 insofar as his conviction relates to the crimes committed against
7 Abdulah Brkic, Witnesses T, AK, AJ, Asef Kapetanovic, Fajzo Mujkanovic,
8 Witness AE, Redzep Grabic, and Jasmin Ramadanovic;
9 Dismisses Zigic's remaining grounds of appeal against convictions
10 in all other respects;
11 Dismisses Zigic's appeal against sentence and affirms a sentence
12 of twenty-five years of imprisonment as imposed by the Trial Chamber.
13 With respect to Prcac's grounds of appeal:
14 Dismisses all of Prcac's grounds of appeal and affirms the
15 sentence of five years of imprisonment as imposed by the Trial Chamber.
16 And finally, rules that this Judgement shall be enforced
17 immediately pursuant to Rule 118 of the Rules;
18 Orders, in accordance with Rule 103(C) and Rule 107 of the Rules,
19 that the Appellants are to remain in the custody of the International
20 Tribunal pending the finalisation of arrangements for their transfer to
21 the State where their sentences will be served.
22 Done in English and French, the English text being authoritative,
23 signed by all five Judges of the Panel.
24 Thank you. You may sit down.
25 [The appellants sit down]
1 JUDGE SHAHABUDDEEN: The proceedings of the Appeals Chamber stand
3 --- Whereupon the Appeals Judgement adjourned at
4 3.53 p.m.