1 Tuesday, 5 May 2009
2 [Appeals Judgement]
3 [Open session]
4 [The appellants entered court]
5 --- Upon commencing at 2.15 p.m.
6 JUDGE MERON: Please be seated.
7 Good afternoon. Registrar, would you please call the case.
8 THE REGISTRAR: Good afternoon, Your Honours. Good afternoon to
9 everyone in the courtroom. This is case number IT-95-13/1-A, the
10 Prosecutor versus Mile Mrksic and Veselin Sljivancanin.
11 JUDGE MERON: Thank you.
12 Mr. Mrksic, Mr. Sljivancanin, can you hear me?
13 THE APPELLANT MRKSIC: [Interpretation] Your Honour, we can hear
15 JUDGE MERON: Mr. Sljivancanin.
16 THE APPELLANT SLJIVANCANIN: [Interpretation] Good afternoon,
17 Your Honour. I can hear.
18 JUDGE MERON: Thank you. Appearances for the parties, first for
19 the Defence of Mr. Mrksic.
20 MR. VASIC: [Interpretation] Good afternoon, Your Honour. Good
21 afternoon to everyone in and around the courtroom. Mr. Miroslav Vasic,
22 Defence counsel, and Vladimir Domazet will be the Defence for Mr. Mrksic
24 JUDGE MERON: For Mr. Sljivancanin.
25 MR. LUKIC: [Interpretation] Good afternoon, Your Honours. I am
1 Novak Lukic, Defence counsel from Belgrade
2 Mr. Stephane Bourgon I will represent the Defence of Mr. Sljivancanin,
3 and we have Mr. William St. Michel as our assistant here.
4 JUDGE MERON: For the Prosecution.
5 MR. ROGERS: Paul Rogers for the Office of the Prosecutor,
6 together with Mr. Marwan Dalal, and our case manager today is
7 Ms. Alma Imamovic.
8 JUDGE MERON: Thank you.
9 As the registrar announced, the case on our agenda today is
10 Prosecutor against Mile Mrksic and Veselin Sljivancanin. In accordance
11 with the Scheduling Order issued on 9 April 2009, today the Appeals
12 Chamber will deliver its judgement.
13 The events giving rise to this case took place on
14 20/21 November, 1991, and concern the mistreatment and execution of Croat
15 and other non-Serb persons taken from the Vukovar Hospital
16 on 20 November 1991
17 by the Yugoslav People's Army, herein after JNA, from August until
18 November 1991. During the course of the three-month siege, the city was
19 largely destroyed by JNA shelling and hundreds of people were killed.
20 When the Serb forces occupied the city, hundreds more non-Serbs were
21 killed by Serb forces. The majority of the remaining non-Serb population
22 of the city was expelled within days of the fall of Vukovar. In the last
23 days of the siege, several hundred people sought refuge at the
24 Vukovar Hospital
25 of international observers.
1 The Zagreb
2 such an evacuation; however, on the morning of 20 November 1991, JNA
3 soldiers conducted a triage at the Vukovar Hospital
4 individuals onto buses. At minimum, the vast majority of the selected
5 individuals were prisoners of war. The prisoners were transported first
6 to the JNA barracks in Vukovar and then onward to a pig farm at Ovcara.
7 At Ovcara, the prisoners were unloaded from the buses and held in a
8 hangar. As they were unloaded from the buses, almost all of the
9 prisoners were forced to pass through a gauntlet of Serb soldiers who
10 beat them cruelly with a variety of implements, including wooden sticks,
11 rifle-butts, poles, chains, and crutches, and verbally abused them. The
12 beatings continued inside the hangar and lasted for hours. Many were
13 kicked or struck with implements such as iron rods and rifle-butts. That
14 evening, the JNA troops who had been guarding the prisoners were
15 withdrawn, leaving the prisoners to the mercy of members of the
16 Territorial Defence, herein after TOs, and paramilitaries. The
17 Trial Chamber found that following the withdrawal of the 80th Motorised
18 Brigade, TOs, and paramilitaries murdered almost 200 of these individuals
19 at Ovcara and buried them in a mass grave. These are identified in the
20 Schedule to the Trial Judgement.
21 During the time relevant to the indictment, Mile Mrksic was a
22 colonel in the JNA and commander of the Guards Motorised Brigade and
23 Operational Group South, herein after OG South. As commander of OG South
24 he had command of all Serb forces including JNA, TO, and paramilitary
25 forces. Mr. Mrksic was convicted under Articles 3 and 7(1) of the
1 Statute for murder as a violation of the laws or customs of war, for
2 having aided and abetted the murder of 194 individuals, identified in the
3 Schedule to the Trial Judgement, at a site located near the hangar at
4 Ovcara on 20 and 21 November 1991; torture, as a violation of the laws or
5 customs of war, for having aided and abetted the torture of POWs at the
6 hangar at Ovcara on 20 November 1991
7 of the laws or customs of war for having aided and abetted the
8 maintenance of inhumane conditions of detention at the hangar at Ovcara
9 on 20 November 1991
10 against humanity, which included persecutions, extermination, murder,
11 torture, and inhumane acts. The Trial Chamber sentenced him to a single
12 term of 20 years' imprisonment.
13 During the period relevant to the indictment,
14 Veselin Sljivancanin was a major in the JNA and held the post of head of
15 the security organ of both the Guards Motorised Brigade and the OG South.
16 The Trial Chamber found that Mr. Sljivancanin was appointed by Mr. Mrksic
17 to evacuate the Vukovar Hospital
18 included the conduct of the triage, the selection of war crimes suspects
19 removed from the Vukovar Hospital
20 transport and security, as well as the evacuation of civilians. The
21 Trial Chamber convicted him under Articles 3 and 7(1) of the Statute for
22 having aided and abetted the torture of prisoners of war at the hangar at
23 Ovcara on 20 November 1991
24 treatment as a violation of the laws and customs of war as it was
25 impermissibly cumulative with his conviction for torture. Further, it
1 acquitted him of all counts charged as crimes against humanity, as well
2 as for murder as a violation of the laws or customs of war. The Trial
3 Chamber sentenced him to a single term of five years' imprisonment.
4 Following the practice of the International Tribunal, I will not
5 read out the text of the judgement except for the disposition. Instead,
6 I will summarise the issues on appeal and the findings of the Appeals
7 Chamber. This summary is not part of the written judgement, which is the
8 only authoritative account of the Appeals Chamber's rulings and reasons.
9 Copies of the written judgement will be made available to the parties at
10 the conclusion of this hearing.
11 The Office of the Prosecutor, herein after Prosecution, brought
12 four grounds of appeal against the Trial Judgement and requests the
13 Appeals Chamber to: reverse the acquittals of Veselin Sljivancanin and
14 Mile Mrksic under Article 5 of the Statute on crimes against humanity;
15 overturn the acquittal of Veselin Sljivancanin for murder as a violation
16 of the laws and customs of war; revise and increase Veselin Sljivancanin
17 and Mile Mrksic's sentence in order to properly reflect the gravity of
18 their criminal conduct; and lastly, revise and increase
19 Veselin Sljivancanin and Mile Mrksic's sentences in case the Appeals
20 Chamber enters new convictions under Article 5 of the Statute.
21 Mile Mrksic brought 11 grounds of appeal against the Trial
22 Judgement. He requests the Appeals Chamber to acquit him of his
23 convictions of Article 3 of the Statute, for having aided and abetted the
24 crimes of murder, torture and cruel treatment. He further argues that
25 the Trial Chamber erred in sentencing him to 20 years' imprisonment.
1 Mr. Sljivancanin brought six grounds of appeal against the Trial
2 Judgement. He requests the Appeals Chamber to reverse the Trial
3 Judgement and find him not guilty of aiding and abetting torture as a
4 violation of the laws and customs of war under Article 3 of the Statute;
5 or in the alternative, to order a new trial on this count; or, if the
6 conviction is upheld, to reduce the sentence of five years' imprisonment
7 imposed by the Trial Chamber.
8 The Appeals Chamber heard submissions of the parties regarding
9 these appeals on 21 and 23 January, 2009.
10 Before addressing Mr. Mrksic and Mr. Sljivancanin's appeals, I
11 will touch upon the Prosecution's first ground of appeal as it raises a
12 legal issue which is relevant to both of them.
13 In its first ground of appeal, the Prosecution argues that the
14 Trial Chamber erred in law by requiring the individual victims of crimes
15 against humanity under Article 5 of the Statute to be civilians, there by
16 excluding persons hors de combat, and as a result, erred in entering
17 convictions for war crimes only. The Appeals Chamber finds that whereas
18 the civilian status of the victims, the number of civilians, and the
19 proportion of civilians within a civilian population are factors relevant
20 to the determination of whether the chapeau requirements of Article 5 of
21 the Statute that an attack be directed against a civilian population have
22 been fulfilled, there is no requirement, nor is it an element of crimes
23 against humanity that the victims of the underlying crimes be civilians.
24 Therefore, the Appeals Chamber allows the Prosecution's first ground of
25 appeal, insofar as it argues that the Trial Chamber erred in law in
1 finding that for the purposes of Article 5 of the Statute, the victims of
2 crimes against humanity must be civilians, thus excluding persons hors de
3 combat from being victims of crimes against humanity.
4 Even though the Trial Chamber erred in law by adding a
5 requirement that the victims of the underlying crimes under Article 5 of
6 the Statute be civilians, the Appeals Chamber concurs with the Trial
7 Chamber - albeit for different reasons - that the jurisdictional
8 prerequisites of Article 5 of the Statute have not been established.
9 This is so because, in the present case, the perpetrators of the crimes
10 committed against the prisoners at Ovcara acted in the understanding that
11 their acts were directed against members of the Croatian armed forces.
12 The fact that they acted in such a way precludes that they intended that
13 their acts form part of the widespread and systematic attack against the
14 civilian population of Vukovar, and renders their acts so removed from
15 the attack that no nexus can be established. The Appeals Chamber finds
16 that in the absence of the required nexus under Article 5 of the Statute
17 the crimes committed cannot be qualified as crimes against humanity.
18 Thus, the Appeals Chamber dismisses the Prosecution's first ground of
19 appeal in all other respects, and upholds the acquittals of
20 Mr. Sljivancanin and Mr. Mrksic under Article 5 of the Statute.
21 Under his first, second, third, fourth, sixth, and tenth grounds
22 of appeal, Mr. Mrksic contends that the Trial Chamber erred by
23 misapplying the standard of proof beyond a reasonable doubt. However,
24 the Appeals Chamber finds that he fails to show that the Trial Chamber
25 erred in its application of the standard of proof beyond a reasonable
2 Under his first ground of appeal, Mr. Mrksic argues that the
3 Trial Chamber wrongly evaluated the role and responsibility of the
4 80th Motorised Brigade, its command structure, and the relevant evidence.
5 The Appeals Chamber observes that the significant number of Mr. Mrksic's
6 submissions under this ground of appeal simply repeat arguments
7 previously advanced before the Trial Chamber and rejected, without
8 providing a clear explanation as to how his arguments supports
9 allegations raised under his first ground of appeal. Mr. Mrksic fails to
10 discharge the burden incumbent upon him and the Appeals Chamber therefore
11 dismisses his first ground of appeal in its entirety.
12 In his second ground of appeal, Mr. Mrksic argues that the
13 Trial Chamber erred in its analysis of security organs responsibility for
14 separating and transporting the prisoners of war from the Vukovar
15 Hospital. The Appeals Chamber observes that a significant number of his
16 submissions on appeal merely repeat arguments from his final trial brief,
17 which were rejected by the Trial Chamber, and some of his arguments
18 ignore relevant Trial Chamber findings. Accordingly, the Appeals Chamber
19 dismisses his second ground of appeal in its entirety.
20 Under his third ground of appeal, Mr. Mrksic submits that the
21 Trial Chamber erred regarding the role and responsibility of officers at
22 the JNA barracks. He submits that the Trial Chamber erred regarding the
23 timing of the transfer and the Serbian Autonomous Region, herein after
24 SAO government's session. However, the Appeals Chamber notes that the
25 Trial Chamber carefully considered all the conflicting evidence on this
1 issue, and there is no indication that the Trial Chamber completely
2 disregarded any particular piece of evidence. Accordingly, the Appeals
3 Chamber dismisses Mr. Mrksic's third ground of appeal in its entirety.
4 Under his fourth ground of appeal, Mr. Mrksic alleges errors
5 regarding the SAO government session. Again, a number of Mr. Mrksic's
6 arguments merely repeats submissions made in his final trial brief or
7 repeat allegations raised under other grounds or subgrounds of appeal
8 previously dismissed. Accordingly, the Appeals Chamber dismisses
9 Mr. Mrksic's fourth ground of appeal in its entirety.
10 Under his fifth ground of appeal, Mr. Mrksic avers that the
11 Trial Chamber erred in fact in concluding that he was informed about the
12 events at Ovcara before the daily briefing in Negoslavci on
13 20 November 1991
14 fails to demonstrate that an alleged error on the part of the
15 Trial Chamber concerning this finding resulted in a miscarriage of
16 justice. Accordingly, the Appeals Chamber dismisses Mr. Mrksic's fifth
17 ground of appeal in its entirety.
18 Under his sixth ground of appeal, Mr. Mrksic submits that the
19 Trial Chamber erred in concluding that he ordered the withdrawal of the
20 80th Motorised Brigade from Ovcara. He challenges the timing of the
21 withdrawal order; the conclusion that he was informed twice about the
22 events at Ovcara; and alleges that the Trial Chamber's assessment of the
23 role of Captain Dragi Vukosavljevic and Colonel Radoje Trifunovic on 20
24 November 1991 was erroneous. With respect to all of these arguments,
25 Mr. Mrksic does not show that the factual assessments of the
1 Trial Chamber, viewed with appropriate deference, were in error.
2 Accordingly, the Appeals Chamber dismisses Mr. Mrksic's sixth ground of
3 appeal in its entirety.
4 Under his seventh ground of appeal, Mr. Mrksic submits that the
5 Trial Chamber erred in concluding that he did travel to Belgrade
6 late on 20 November 1991
7 this led to the erroneous finding that he ordered the withdrawal of the
8 military police from Ovcara. The Appeals Chamber finds that Mr. Mrksic's
9 arguments fail to show that the Trial Chamber committed an error of fact
10 which occasioned a miscarriage of justice and dismisses his seventh
11 ground of appeal in its entirety.
12 Under the eighth ground of appeal, Mr. Mrksic avers that the
13 Trial Chamber erred in concluding that the command of OG South under his
14 authority had responsibility for the area of Vukovar between
15 8 October and 24 November 1991
16 submissions previously made at trial and rejected by the Trial Chamber
17 and fail to elaborate on how the error alleged under one of his
18 subgrounds of appeal had any impact on the findings of the Trial Chamber
19 so as to amount to a miscarriage of justice. Accordingly, the
20 Appeals Chamber dismisses his eighth ground of appeal in its entirety.
21 Under his ninth ground of appeal, Mr. Mrksic submits that as a
22 result of the factual errors alleged under his preceding eight grounds of
23 appeal, the Trial Chamber erred in law in convicting him pursuant to
24 Article 7(1) of the Statute for having aided and abetted the crimes of
25 murder, cruel treatment and torture. Some of the arguments in support
1 have either already been advanced under his previous grounds of appeal
2 and dismissed, or repeated submissions made at trial without showing that
3 the Trial Chamber's rejection of them constituted an error which warrants
4 intervention by the Appeals Chamber. Consequently, Mr. Mrksic fails to
5 show that the Trial Chamber committed any error of law invalidating the
6 Trial Judgement in reaching its findings on his mens rea for aiding and
7 abetting the murder of the prisoners of war.
8 Under his ninth ground of appeal, Mr. Mrksic also submits that as
9 a result of the factual errors alleged under his preceding eight grounds
10 of appeal, the Trial Chamber erred in law in finding, under Article 7(3)
11 of the Statute on command responsibility that he committed murder, cruel
12 treatment and torture. However, the Appeals Chamber recalls that the
13 Trial Chamber did not enter a conviction against Mr. Mrksic pursuant to
14 Article 7(3) of the Statute. In light of the foregoing, the
15 Appeals Chamber dismisses Mr. Mrksic's ninth ground of appeal.
16 Under his tenth ground of appeal, Mr. Mrksic raises what he calls
17 disputable facts. These are facts which he acknowledges were not so
18 important for the Trial Chamber in the course of reaching its decision
19 but which he claims are important for the Defence and the position of the
20 JNA. The Appeals Chamber reiterates that as long the factual findings
21 supporting Mr. Mrksic's conviction and sentence are sound, as a general
22 rule it will decline to discuss errors related to other factual
23 conclusions which do not have any impact on the Trial Judgement. In
24 light of this, and since he admits that the errors alleged under this
25 ground of appeal have no impact on the conviction or sentence, the
1 Appeals Chamber dismisses Mr. Mrksic's tenth ground of appeal in its
3 Since Mr. Mrksic's eleventh ground of appeal concerns his
4 sentence, it will be addressed at the end of the summary in the part
5 relevant to sentencing.
6 I now turn to Mr. Sljivancanin's appeal.
7 Under his first ground of appeal, Mr. Sljivancanin argues that
8 the Trial Chamber erred in finding that he was present in Ovcara on the
9 afternoon of 20 November 1991
10 by relying exclusively on the testimony of Witness P009. The
11 Appeals Chamber finds that the Trial Chamber properly considered the
12 evidence in reaching its finding and dismisses his first ground of appeal
13 in its entirety.
14 Mr. Sljivancanin's second ground of appeal challenges aiding and
15 abetting by omission as a mode of liability. In support of this
16 challenge, he first argues that aiding and abetting by omission is not a
17 mode of liability included in the International Tribunal's jurisdiction.
18 However, the Appeals Chamber finds that the Trial Chamber properly
19 considered aiding and abetting by omission as a recognised mode of
20 liability under the International Tribunal's jurisdiction.
21 Mr. Sljivancanin also submits that he was not put on notice that
22 the Prosecution intended to rely on this mode of liability. The
23 Appeals Chamber finds that the indictment plead with sufficient
24 particularity the nature of the charges against him with regard to aiding
25 and abetting by omission, the mistreatment of prisoner of war at Ovcara.
1 Further, the Appeals Chamber finds that Mr. Sljivancanin failed to show
2 that his Defence was materially impaired by the alleged lack of notice.
3 Turning to the elements of aiding and abetting by omission, the
4 Appeals Chamber considers that the mens rea and actus reus requirements
5 for aiding and abetting by omission are the same as for aiding and
6 abetting by a positive act. Thus, the omission must be directed to
7 assist, encourage, or lend moral support to the perpetration of a crime
8 and have a substantial effect upon the perpetration of the crime which
9 forms the actus reus
10 omission assists in the commission of the crime of the principal
11 perpetrator and must be aware of the essential elements of the crime
12 which was ultimately committed by the principal which forms the mens rea.
13 The critical issue to be determined is whether, on the particular facts
14 of a given case, it is established that the failure to discharge a legal
15 duty assisted, encouraged, or lent moral support to the perpetration of
16 the crime, and had a substantial effect on it. Further, the
17 Appeals Chamber considers that aiding and abetting by omission implicitly
18 requires that the accused had the ability to act, such that there were
19 means available to the accused to fulfil his duty.
20 With regard to the nature of the duty, the Appeals Chamber
21 recalls that it has previously recognised that the breach of a duty to
22 act imposed by the laws and customs of war gives rise to individual
23 criminal responsibility. Mr. Sljivancanin's duty to protect the
24 prisoners of war was imposed by the laws and customs of war. I will
25 elaborate more on this point later on when I address the Prosecution's
1 second ground of appeal. Thus the Appeals Chamber considers that his
2 breach of such duty gives rise to his individual criminal responsibility.
3 Accordingly, Mr. Sljivancanin's second ground of appeal is dismissed in
4 its entirety.
5 In his third ground of appeal, Mr. Sljivancanin argues that the
6 Trial Chamber erred in finding that Mr. Mrksic put him in charge of the
7 evacuation of the Vukovar Hospital
8 duty to protect the prisoners of war at Ovcara. The Appeals Chamber
9 finds that it was reasonably open to the Trial Chamber to conclude, on
10 the basis of the totality of the evidence before it, that
11 Mr. Sljivancanin was under a duty to protect the prisoners of war from
12 the Vukovar Hospital
13 Mr. Mrksic. Accordingly, Mr. Sljivancanin's third ground of appeal is
14 dismissed in its entirety.
15 In his fourth ground of appeal, Mr. Sljivancanin challenges the
16 Trial Chamber's finding that he must have witnessed the mistreatment of
17 the POWs in Ovcara. The Appeals Chamber recalls that with respect to
18 Mr. Sljivancanin's first ground of appeal, it has found that he failed to
19 demonstrate that the Trial Chamber committed any error of law or fact
20 with regard to his presence at Ovcara on the afternoon of
21 20 November 1991
22 his fourth ground of appeal, Mr. Sljivancanin does not attempt to further
23 substantiate his arguments under his first ground of appeal.
24 Accordingly, his fourth ground of appeal is dismissed in its entirety.
25 In Mr. Sljivancanin's fifth ground of appeal, he submits that the
1 elements of aiding and abetting the torture of the prisoners of war at
2 Ovcara were not fulfilled.
3 First, with regard to whether Mr. Sljivancanin's failure to act
4 had a substantial effect on the commission of the crimes at Ovcara, the
5 Appeals Chamber finds that the fact that other officers better placed
6 than him to ensure the protection of the prisoners of war at Ovcara also
7 failed to act does not itself negate the fact of Mr. Sljivancanin's
8 failure to intervene to prevent the mistreatment. As to
9 Mr. Sljivancanin's contention that he was not responsibile for the
10 security of the prisoners of war held at Ovcara, and that it has not been
11 proven that he could have prevented the mistreatment of prisoners of war,
12 the Appeals Chamber recalls that it has upheld the Trial Chamber's
13 finding that Mr. Mrksic ordered Mr. Sljivancanin to be in charge of the
14 evacuation and authorised him to use as many military police as necessary
15 to escort the prisoners of war and ensure their safe passage. The
16 Appeals Chamber finds that Mr. Sljivancanin failed to show any error in
17 the Trial Chamber's consideration of whether his contribution had a
18 substantial effect on the mistreatment of the prisoners of war at Ovcara.
19 Second, with regard to Mr. Sljivancanin's argument that the
20 Trial Chamber erred in finding that he must have -- that he must have
21 been aware that his failure to give clear direction to the military
22 police or to reinforce them assisted the commission of the crimes, the
23 Appeals Chamber considers that, in light of the fact that
24 Mr. Sljivancanin saw the mistreatment of the prisoners of war at Ovcara
25 occurring despite the presence of JNA troops, it must have been clear to
1 him that the JNA officers and troops present were either unable or
2 unwilling to prevent the beatings. Mr. Sljivancanin must have known that
3 it was his responsibility to protect the POWs and that he had the
4 authority to take action. Knowing what he did, the only reasonable
5 conclusion is that he knew that his failure to take any action to protect
6 the POWs assisted in the mistreatment of the POWs by the TOs and
7 paramilitaries. As a result, it was open to the Trial Chamber to
8 conclude that Mr. Sljivancanin possessed the requisite mens rea for
9 aiding and abetting torture. Accordingly his fifth ground of appeal is
10 dismissed in its entirety.
11 Mr. Sljivancanin's sixth ground of appeal will be addressed at
12 the end of this summary in the part relevant to sentencing.
13 I now turn to the Prosecution's second ground of appeal which is
14 also relevant to Mr. Sljivancanin.
15 In its second ground of appeal, the Prosecution argues that the
16 Trial Chamber erred in fact and in law in failing to find that
17 Mr. Sljivancanin was responsible for aiding and abetting the murder of
18 the 194 people identified in the Schedule to the Trial Judgement as
19 having been killed at Ovcara on the evening of 20 /21 November, 1991.
20 The Prosecution submits that the Trial Chamber erred in failing
21 to find that Mr. Sljivancanin knew at the time of his visit to Ovcara
22 that the TOs and paramilitaries would likely kill the prisoners. With
23 regard to the mens rea of aiding and abetting the murders, the
24 Trial Chamber found that it was only upon the final withdrawal of the JNA
25 troops from Ovcara on the evening of 20 November 1991 that the killing of
1 the prisoners of war became a likely occurrence, and therefore, that it
2 was possible that Mr. Sljivancanin did not foresee the likelihood of the
3 murders prior to learning of the withdrawal. The Appeals Chamber finds
4 that it was not unreasonable for the Trial Chamber to have concluded that
5 as long as the presence of the JNA troops continued, they might have
6 continued to provide a sufficient intervening element to prevent the
7 mistreatment by TOs and paramilitaries from escalating from physical
8 abuse to killing, despite their failure to prevent mistreatment
9 altogether. Thus, it was not unreasonable for the Trial Chamber to
10 conclude that Mr. Sljivancanin could reasonably have believed in the
11 circumstances that the TOs and paramilitaries would be unlikely to resort
12 to killing. As a result, the Appeals Chamber finds that Mr. Sljivancanin
13 did not possess the requisite mens rea for aiding and abetting murder, as
14 long as he was under the understanding that the JNA troops remained at
16 The Appeals Chamber notes that the Trial Chamber did not make a
17 finding or draw any inference as to when or whether Mr. Sljivancanin
18 became aware of the order to withdraw the JNA troops on the night of
19 20 November 1991
20 drawn is that Mr. Mrksic told Mr. Sljivancanin in the course of their
21 meeting upon Mr. Sljivancanin's return to Negoslavci that night that he
22 had withdrawn the JNA protection from the prisoners of war held at
23 Ovcara. Given the Trial Chamber's finding that it was Mr. Sljivancanin's
24 knowledge of the presence of the JNA troops that precluded him from
25 concluding that the killing of the prisoners of war was a likely
1 occurrence, the only reasonable inference is that upon learning of the
2 order to withdraw the troops, Mr. Sljivancanin realized that the killing
3 of the POWs at Ovcara had become a likely occurrence.
4 Similarly, knowing that the killing of POWs was the likely
5 outcome of their being left in the custody of the TOs and paramilitaries,
6 Mr. Sljivancanin must have also realized that given his responsibility
7 for the prisoners of war, if he failed to take action to ensure the
8 continued protection of POWs, he would be assisting the TOs and
9 paramilitaries to carry out the murders. As a result, the Appeals
10 Chamber finds that upon learning of the order to withdraw the JNA troops
11 from Mr. Mrksic at their meeting of the night of 20 November 1991, the
12 only reasonable inference is that Mr. Sljivancanin was aware that the TOs
13 and paramilitaries would likely kill the POWs and that if he failed to
14 act, his omission would assist in the murder of the prisoners.
15 Accordingly, the Appeals Chamber finds that upon learning of Mr. Mrksic's
16 order to withdraw the JNA troops from Ovcara, Mr. Sljivancanin formed the
17 mens rea for aiding and abetting murder.
18 Under its second ground of appeal, the Prosecution also
19 challenges the Trial Chamber's finding that Mr. Sljivancanin's legal duty
20 towards the prisoners ended upon the withdrawal of the last JNA troops
21 from Ovcara upon Mr. Mrksic's orders.
22 Before elaborating on the correctness of this finding, it is
23 pertinent at this juncture to recall that the Trial Chamber did not make
24 a finding as to whether the armed conflict in the municipality of Vukovar
25 at the material time was of an international or non-international nature.
1 However, even in the context of an internal armed conflict, Geneva
2 Convention III
3 where the parties to the conflict have agreed that the convention shall
4 apply. In this respect, the Appeals Chamber recalls the European
5 Community Monitoring Mission
6 implementation of the Zagreb
7 Geneva Conventions were to be applied to the prisoners of war. In order
8 an order issued on 18 November 1991
9 directed the JNA units in the Vukovar area, including OG South, were to
10 observe all aspects of Geneva Convention III. Furthermore,
11 Colonel Nebojsa Pavkovic advised the monitors of instructions from
12 General Raseta to the effect that Croat forces would not be evacuated
13 with the rest of the humanitarian convoy but remain as prisoners of war
14 and that the Geneva Conventions would apply. The Appeals Chamber
15 considers that this provides sufficient evidence to conclude that the JNA
16 had agreed that the Croat forces were to be considered prisoners of war
17 and that Geneva Convention III
18 Turning to Mr. Sljivancanin's responsibility for the welfare and
19 security of the prisoners of war in the context of Geneva Convention III,
20 the Appeals Chamber recalls that the fundamental principle enshrined in
21 Geneva Convention III
22 protected from physical and mental harm, applies from the time they fall
23 into the power of the enemy until their final release and repatriation.
24 It thus entails the obligation of each agent in charge of the protection
25 or with custody of the prisoners of war to ensure that their transfer to
1 another agent will not diminish the protection to which the prisoners are
3 Further, although the duty to protect POWs belongs in the first
4 instance to the detaining power, this is not to the exclusion of
5 individual responsibility. The Appeals Chamber thus finds that the
6 Geneva Convention III
7 whose custody the prisoners of war have come with the obligation to
8 protect them. It considers that all state agents who find themselves
9 with custody of POWs owe them a duty of protection regardless of whether
10 the investment of responsibility was made through explicit delegation,
11 such as through legislative enactment or a superior order, or as a result
12 of the state agent finding himself with de facto custody over prisoners
13 of war, such as where a prisoner of war surrenders to that agent.
14 The Appeals Chamber therefore considers that Mr. Sljivancanin was
15 under a duty to protect the prisoners of war held at Ovcara and that this
16 responsibility included the obligation not to allow the transfer of
17 custody of the prisoners of war to anyone without first satisfying
18 himself that they would not be harmed. Mr. Mrksic's order to withdraw
19 the JNA troops did not relieve him of his position as an officer of the
20 JNA. As such, Mr. Sljivancanin remained an agent of the detaining power
21 and thus continued to be bound by Geneva Convention III not to transfer
22 the prisoners of war to another agent who would not guarantee their
23 safety. For the foregoing reasons, the Appeals Chamber finds that the
24 Trial Chamber erred in finding that Mr. Sljivancanin's duty to protect
25 the POWs, pursuant to the laws and customs of war came to an end upon
1 Mr. Mrksic's order to withdraw.
2 In light of these findings the Appeals Chamber turns to consider
3 whether Mr. Sljivancanin's failure to act upon learning of the order to
4 withdraw the JNA troops from Ovcara substantially contributed to the
5 murder of the prisoners of war by the TOs and paramilitaries. The
6 Appeals Chamber must be satisfied beyond a reasonable doubt that the
7 Prosecution has demonstrated that Mr. Sljivancanin substantially
8 contributed to the killings by his inaction and that a count is taken of
9 the errors committed by the Trial Chamber all reasonable doubt concerning
10 Mr. Sljivancanin's guilt has been eliminated. In this regard, the
11 Appeals Chamber recalls that aiding and abetting by omission implicitly
12 requires that the accused had the ability to act but failed to do so.
13 The Trial Chamber found that at the relevant time,
14 Mr. Sljivancanin was exercising the power and authority conferred on him
15 by Mr. Mrksic to conduct the evacuation of the hospital, and as such, he
16 was exercising de jure authority with respect to the relevant JNA
17 military police forces of OG South rather than pursuant to his mandate as
18 security organ. Accordingly, an order from Mr. Mrksic terminating any
19 specifically delegated duty for the security of the prisoners of war,
20 would also have removed the power and authority that Mr. Sljivancanin had
21 over the military police of the 80th Motorised Brigade.
22 Having said this, the Appeals Chamber considers that even though
23 Mr. Sljivancanin no longer had de jure authority over the military police
24 deployed at Ovcara, he could have informed the military police deployed
25 at Ovcara that Mr. Mrksic's order was in breach of the overriding
1 obligation under the laws and customs of war to protect the POWs and thus
2 constituted an illegal order. Issuing an order contrary to Mr. Mrksic's
3 to the military police of the 80th Motorised Brigade was a course of
4 action that would have required Mr. Sljivancanin to go beyond the scope
5 of his de jure authority, which had been effectively removed by virtue of
6 Mr. Mrksic's withdrawal order. Nonetheless, the illegality of
7 Mr. Mrksic's order required Mr. Sljivancanin to do so. The
8 Appeals Chamber considers that in certain circumstances, an officer may
9 be required, within the limits of his capacity to act, to go beyond his
10 de jure authority to counteract an illegal order.
11 The Appeals Chamber further considers that Mr. Sljivancanin could
12 have attempted to persuade Mr. Mrksic to abort the withdrawal order. Had
13 his attempts to persuade Mr. Mrksic not been successful, when
14 Mr. Sljivancanin telephoned Belgrade
15 General Vasiljevic, he could have sought the General's assistance on this
17 The Appeals Chamber considers that had Mr. Sljivancanin been
18 successful in securing the return of the military police to Ovcara, the
19 murder of the prisoners of war would have been substantially less likely.
20 The Appeals Chamber thus finds that Mr. Sljivancanin's failure to act
21 pursuant to his duty under the laws and customs of war substantially
22 contributed to the murder of the prisoners of war.
23 For the foregoing reasons, the Appeals Chamber finds, Judge Pocar
24 and Judge Vaz dissenting, that all the requirements for a conviction for
25 aiding and abetting murder by omission have been met, and is satisfied
1 beyond a reasonable doubt that the Prosecution has shown that, when
2 account is taken of the errors committed by the Trial Chamber, all
3 reasonable doubt concerning Mr. Sljivancanin's guilt has been eliminated.
4 I now turn to the sentencing appeals.
5 In his eleventh ground of appeal, Mr. Mrksic argues that the
6 Trial Chamber wrongly considered aggravating and mitigating circumstance
7 that the laws of the former Yugoslavia
8 convicted of like offences could never refer to abettors, but only to
9 perpetrators of such crimes and hence that his sentence is "too severe
10 and unjust."
11 The Appeals Chamber rejects Mr. Mrksic's challenges to the
12 Trial Chamber's assessment of the aggravating and mitigating
13 circumstances and also finds that Mr. Mrksic fails to identify any
14 discernible error concerning the Trial Chamber's consideration of the
15 general sentencing practice of the former Yugoslavia. Therefore,
16 Mr. Mrksic's eleventh ground of appeal is dismissed in its entirety.
17 Under its fourth ground of appeal, the Prosecution argues that
18 the Trial Chamber erred by imposing a "manifestly inadequate" sentence on
19 Mr. Mrksic as insufficient weight was given to Mr. Mrksic's role and
20 responsibility and to the gravity of his crimes; namely, aiding and
21 abetting the torture and cruel treatment of the approximately
22 200 prisoners held at Ovcara, and aiding and abetting the murder of
23 194 of them. Consequently, it requests that Mr. Mrksic's sentence be
25 With regard to Mr. Mrksic's role and responsibility, the
1 Appeals Chamber finds that the Trial Chamber duly considered his position
2 and the role both in the context of how he contributed to the commission
3 of the crimes and in the context of assessing whether his conduct as an
4 officer could be considered as a mitigating circumstance. The
5 Prosecution's arguments are dismissed.
6 With respect to the Prosecution's submissions that the Trial
7 Chamber gave insufficient weight to the "objective gravity" of the
8 crimes, the Appeals Chamber emphasises that while consideration of the
9 gravity of the offence involves, in addition to consideration of the
10 gravity of the conduct of the accused, consideration of the seriousness
11 of the underlying crimes, the gravity of the crime does not refer to a
12 crime's "objective gravity." With regard to the Prosecution's argument
13 that the Trial Chamber erred by only considering comparable cases
14 involving mass killings and not cases involving torture or cruel
15 treatment, the Appeals Chamber recalls that, in the present case, the
16 Trial Chamber stated that it could not, and I quote "identify a case
17 before the Tribunal that may be said to involve the same offence and
18 substantially similar circumstances as in the present case."
19 Accordingly, it did not engage in a comparison with previous decisions on
20 sentence and rather referred to its obligation to tailor its sentence to
21 fit the individual circumstance of the case. The Appeals Chamber finds
22 that the Prosecution fails to demonstrate that the Trial Chamber
23 disregarded previous comparable cases.
24 The Appeals Chamber further notes that the Trial Chamber was
25 aware of its obligation under Article 24(2) of the Statute to take into
1 account the gravity of the crime in its sentencing determination. The
2 Trial Judgement is replete with detailed findings addressing the gravity
3 of the underlying crimes involving the mistreatment at Ovcara and the
4 subsequent execution of at least 194 of the prisoners and their burial in
5 a mass grave.
6 In recalling these findings, the Trial Chamber took into account
7 Mr. Mrksic's conviction for murder, torture, and cruel treatment in
8 assessing the gravity of the crimes. The Appeals Chamber emphasises that
9 the Trial Judgement must be read as a whole. The Trial Chamber's
10 references to the underlying crimes in the sentencing part and its
11 detailed findings in the body of the Trial Judgement as to the horrific
12 condition in which the prisoners of war had been kept throughout the
13 afternoon, the nature of the mistreatment to which they were subjected,
14 and the way in which 194 of them were murdered, indicate that the gravity
15 of the underlying crimes was properly considered at the sentencing stage.
16 However, the Appeals Chamber is unable to determine how the Trial Chamber
17 weighed the consequences of the torture upon the victims and their
18 families, or whether or not -- and whether or to what extent it
19 considered the particular vulnerability of the prisoners. Nonetheless,
20 the Appeals Chamber finds that the Trial Chamber's sentence of 20 years'
21 imprisonment is not so unreasonable that it can be inferred that the
22 Trial Chamber must have failed to exercise its discretion properly.
23 Accordingly, the Prosecution fails to show that the Trial Chamber
24 committed any discernible error in the exercise of its discretion by
25 imposing a sentence that does not reflect the gravity of the crimes
1 Mrksic aided and abetted.
2 In light of the foregoing, the Appeals Chamber dismisses the
3 Prosecution's fourth ground of appeal in its entirety.
4 I turn now to the appeals regarding Veselin Sljivancanin's
6 Mr. Sljivancanin submits in his sixth ground of appeal that the
7 Trial Chamber erred, when assessing his role and responsibility in the
8 torture of POWs at Ovcara, in finding that the POWs were under his
9 immediate responsibility; erred by considering his involvement in
10 preventing international representatives from gaining access to the
11 hospital on 20 November 1991
12 failing to consider his good conduct and demeanour as a mitigating
13 circumstance; and did not properly take into account the sentencing
14 practices in the former Yugoslavia
15 With regard to the Trial Chamber's finding that the POWs were
16 under his immediate responsibility, the Appeals Chamber finds that
17 Mr. Sljivancanin does not demonstrate the Trial Chamber's use of the
18 words "immediate responsibility" is inconsistent with its previous
19 findings regarding his responsibility for the POWs at Ovcara. His
20 arguments are dismissed.
21 With regard to Mr. Sljivancanin's involvement in preventing
22 international representatives from gaining access to the hospital on
23 20 November 1991
24 whether the Trial Chamber took this factor into account as an aggravating
25 circumstance. The Appeals Chamber is thus not satisfied that the
1 Trial Chamber committed a discernible error in exercising its discretion.
2 Accordingly, Mr. Sljivancanin's arguments are dismissed.
3 With respect to Mr. Sljivancanin's argument that the
4 Trial Chamber erred in failing to consider his good conduct and demeanour
5 as a mitigating circumstance, the Appeals Chamber notes that the
6 Trial Chamber considered evidence of his good character when sentencing
7 him. The Appeals Chamber notes that Mr. Sljivancanin did not make any
8 sentencing submission at trial. Accordingly, his arguments are
10 The Appeals Chamber also rejects Mr. Sljivancanin's challenges to
11 the Trial Chamber's consideration of the general sentencing practice of
12 the former Yugoslavia
13 In light of the foregoing, Mr. Sljivancanin's sixth ground of
14 appeal is dismissed in its entirety.
15 The Prosecution submits under its third ground of appeal that the
16 sentence of five years' imprisonment imposed by the Trial Chamber on
17 Mr. Sljivancanin is manifestly inadequate because insufficient weight was
18 given to Mr. Sljivancanin's role and responsibility, and insufficient
19 weight was given to the "objective gravity" of the crimes. The
20 Prosecution also argues that a five-year sentence has no deterrent value
21 for people who will be similarly situated in the future. It seeks an
22 increase in Mr. Sljivancanin's sentence to fall into the range of
23 15 to 25 years' imprisonment.
24 With regard to Mr. Sljivancanin's role and responsibility, the
25 Appeals Chamber notes that the Trial Chamber duly considered how
1 Mr. Sljivancanin's role and responsibility contributed to the commission
2 of the cruel treatment and torture of the prisoners of war. The
3 Appeals Chamber further notes that in discussing his role and
4 responsibility in the sentencing part, the Trial Chamber take care to
5 reiterate its findings with regard to exact scope of Mr. Sljivancanin's
7 With regard to the gravity of the underlying crimes of torture
8 and cruel treatment of the prisoners, the Appeals Chamber first notes
9 that the Trial Chamber did not elaborate in the sentencing part of the
10 Trial Judgement on the scale and brutality of the crimes. However,
11 throughout the Trial Judgement it made a number of findings attesting to
12 the horrific torture and cruel treatment of the prisoners of war. The
13 Trial Chamber had found that the beatings inflicted serious pain and
14 suffering and that the conditions of detention at Ovcara, including the
15 atmosphere of terror and the constant threat of violence, caused serious
16 mental or physical suffering. In this respect, the Appeals Chamber notes
17 that the long-term physical, psychological and emotional suffering of the
18 immediate victims is irrelevant to the gravity of the offences.
19 The Appeals Chamber notes that the Trial Chamber indicated its
20 awareness that in assessing its gravity of the offence the overall impact
21 of the crimes upon the victims and their families may be considered. In
22 particular, the Trial Chamber noted that: "Apart from a very few persons
23 subjected to cruel treatment or torture, in the present case the victims
24 of the offences were all murdered on the day. The consequences for them
25 were absolute. Close family members have been left without their loved
1 ones. In almost all cases, the anguish and hurt of such tragedy has been
2 aggravated by uncertainty about the fate which befell these victims."
3 The Trial Chamber did not make specific reference in the
4 sentencing part of the Trial Judgement to the particular vulnerability of
5 the prisoners of war at the time of the commission of the acts and the
6 impact this had upon them, though there are findings to this effect in
7 the body of the Trial Judgement. The Appeals Chamber observes that the
8 Trial Chamber's consideration of the overall impact upon the victims and
9 their families as reflected in the paragraph I just quoted, focussed on
10 the fact that most were murdered subsequent to being tortured. The Trial
11 Chamber did not explicitly consider in the sentencing part of the Trial
12 Judgement the consequence of the torture per se, on the victims or their
13 families. As Mr. Sljivancanin was convicted only for aiding and abetting
14 the torture of the prisoners of war, it is not entirely clear from the
15 Trial Judgement how the Trial Chamber assessed the overall impact of the
16 torture on the victims and their families in the determination of his
18 While the Appeals Chamber acknowledges that the Trial Judgement,
19 read as a whole, contains numerous findings to the effect that, in light
20 of the murders of the POWs, close family members had been left without
21 their loved ones, and that in almost all cases the anguish and hurt of
22 such tragedy had been aggravated by uncertainty about the fate which
23 befell these victims, the Appeals Chamber is unable to determine how the
24 Trial Chamber weighed the consequences of the torture upon the victims
25 and their families, or whether or to what extent it considered the
1 particular vulnerability of the prisoners, in the determination of
2 Mr. Sljivancanin's sentence. These crimes were characterized by extreme
3 cruelty and brutality towards the POWs, some of whom may have been
4 previously injured as they had been taken from the Vukovar Hospital
5 these persons were protected under international humanitarian law by
6 reason of their status and particular vulnerability.
7 In light of the foregoing, the Appeals Chamber finds that there
8 was a discernible error in the Trial Chamber's exercise of discretion in
9 imposing the sentence. Even though the Trial Chamber did not err in its
10 factual findings, considering the findings of the Trial Chamber on the
11 gravity of the crimes, and in particular the consequences of the torture
12 upon the victims and their families, the particular vulnerability of the
13 prisoners, and the very large number of victims, the Appeals Chamber
14 finds that the sentence of five years' imprisonment is so unreasonable
15 that it can be inferred that the Trial Chamber must have failed to
16 exercise its discretion properly. The Appeals Chamber thus finds that a
17 fire years' imprisonment sentence does not adequately reflect the level
18 of gravity of the crimes committed by Mr. Sljivancanin.
19 Finally, with regard to the Prosecution contention that
20 Mr. Sljivancanin's sentence should convey to those in positions of power
21 that their failure to meet their responsibilities will be properly
22 punished, the Appeals Chamber finds that although the Trial Chamber did
23 not refer specifically to deterrence when considering the factors it took
24 into account in sentencing Mr. Sljivancanin, having referred to
25 deterrence in general terms earlier, as one of the "primary objectives of
1 sentencing," it may be assumed that it was taken into account in
2 sentencing him.
3 I will now read out in full the disposition the Appeals Chamber
5 Mr. Mrksic, Mr. Sljivancanin, would you please stand.
6 For the foregoing reasons, the Appeals Chamber, pursuant to
7 Article 25 of the Statute and Rules 117 and 118 of the Rules;
8 Noting the respective written submissions of the parties and the
9 arguments they presented at the appeals hearings on 21 and 23
10 January 2009;
11 Sitting in open session;
12 Allows the Prosecution's first ground of appeal in part, insofar
13 as it argues that the Trial Chamber erred in law in finding that, for the
14 purposes of Article 5 of the Statute, the individual victims of crimes
15 against humanity must be civilians; dismisses the Prosecution's first
16 ground of appeal in all other respects; affirms the acquittals of
17 Veselin Sljivancanin and Mile Mrksic under Article 5 of the Statute;
18 Allows by majority, the Prosecution's second ground of appeal;
19 Quashes, Judge Vaz dissenting, Veselin Sljivancanin's acquittal
20 under Count 4 of the indictment, and finds, pursuant to Articles 3 and
21 7(1) of the Statute, Judge Pocar and Judge Vaz dissenting,
22 Veselin Sljivancanin guilty under Count 4 of the indictment for aiding
23 and abetting the murder of 194 individuals identified in the Schedule to
24 the Trial Judgement;
25 Allows the Prosecution's third ground of appeal, in part, insofar
1 as the five years' imprisonment sentence does not adequately reflect the
2 level of gravity of the crimes committed by Veselin Sljivancanin;
3 Dismisses the Prosecution's appeal in all other respects;
4 Dismisses Mile Mrksic's appeal in its entirety;
5 Affirms Mile Mrksic's convictions under Counts 4, 7, and 8 of the
7 Dismisses Veselin Sljivancanin's appeal in its entirety;
8 Affirms Veselin Sljivancanin's conviction under Count 7 of the
10 Affirms Mile Mrksic's sentence of 20 years of imprisonment,
11 subject to credit being given under Rule 101(C) of the Rules for the
12 period already spent in detention;
13 Quashes Veselin Sljivancanin's sentence of five years of
14 imprisonment imposed by the Trial Chamber and imposes by majority,
15 Judge Pocar and Judge Vaz dissenting, a sentence of 17 years, subject to
16 credit being given under Rule 101(C) of the Rules for the period already
17 spent in detention;
18 Orders, in accordance with Rule 103(C) and Rule 107 of the Rules,
19 that Mile Mrksic and Veselin Sljivancanin are to remain in the custody of
20 the International Tribunal pending the finalisation of arrangements for
21 their transfer to the state where their sentences will be served.
22 Judge Fausto Pocar appends a partially dissenting opinion.
23 Judge Andresia Vaz appends a partially dissenting opinion.
24 Mr. Mrksic and Mr. Sljivancanin, you may be seated.
25 I would now request the registrar to please deliver copies of the
1 Judgement to the parties.
2 The Appeals Chamber will now rise.
3 --- Whereupon the hearing adjourned at 3.26 p.m.