1 Thursday, 3 July 2008

2 [Appeals Judgement]

3 [Open session]

4 --- Upon commencing at 8.59 a.m.

5 JUDGE SCHOMBURG: A very good morning to everybody.

6 Madam Registrar, could you please be kind enough and to call the

7 case.

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

9 number IT-03-68-A, the Prosecutor versus Naser Oric.

10 JUDGE SCHOMBURG: Thank you.

11 Before commencing this session, I should like, also on behalf of

12 my colleagues on the Bench, to thank all of you having contributed on

13 behalf of -- having contributed to these appeals hearing before and

14 behind the scenes. I express gratitude in particular to translators and

15 interpreters having assisted us in understanding each other.

16 The purpose of today's session is to render the appeals judgement

17 in the case of Prosecutor versus Naser Oric.

18 May I ask you, Mr. Oric, can you hear and follow the proceedings

19 in a language you understand?

20 THE APPELLANT: [Interpretation] Your Honour, I understand the

21 proceedings in my own language.

22 JUDGE SCHOMBURG: Thank you.

23 May I have the appearances for the Prosecution please.

24 MR. ROGERS: Yes. Good morning, Your Honours. Paul Rogers

25 appearing for the Prosecution together with my co-counsel Laurel Baig,

1 and our case manager this morning is Sebastiaan van Hooydonk.

2 JUDGE SCHOMBURG: Thank you.

3 And for the Defence, please.

4 MS. VIDOVIC: [Interpretation] Good morning, Your Honours. Good

5 morning to my colleagues in the OTP and everybody in and out of the

6 courtroom. Vasvija Vidovic and John Jones representing Naser Oric,

7 assisted by Jasmina Cosic and Adisa Mehic.

8 JUDGE SCHOMBURG: Thank you.

9 I will now summarize the main issues on appeal and the findings

10 of the Appeals Chamber. This summary is not part of the written

11 judgement which is the only authoritative account of the Appeals

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

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

14 The events giving rise to this case took place in the

15 municipality of Srebrenica, in Bosnia and Herzegovina, and its

16 surrounding area, between June 1992 and March 1993. In its indictment,

17 the Prosecution alleged that between 24 September 1992 and 20 March 1993,

18 members of the military police of the municipality of Srebrenica under

19 the control of Naser Oric detained Serb individuals at the police station

20 in Srebrenica and at a building behind the Srebrenica municipal building,

21 hereinafter referred to as "the building." A number of detainees were

22 subjected to serious abuse and injury, some were beaten to death.

23 The Prosecution also alleged that between 10 June 1992 and

24 8 January 1993, Bosnian Muslim armed units under the command and control

25 of Naser Oric burned, destroyed buildings, dwellings, and other

1 properties in the course of military actions against the villages of

2 Ratkovici, Jezestica, Fakovici, Bjelovac, Kravica, Siljkovici, and

3 surrounding and adjoining hamlets.

4 The Prosecution charged Naser Oric with individual criminal

5 responsibility under Article 7(3) under the Statute of the Tribunal for

6 murder and cruel treatment and for wanton destruction of cities, towns,

7 or villages not justified by military necessity as violations of the laws

8 or customs of war.

9 The Prosecution also charged Naser Oric with individual criminal

10 responsibility under Article 7(1) of the Statute for instigating and

11 aiding and abetting the crime of unlawful and wanton destruction not

12 justified by military necessity.

13 In its judgement of 30 June 2006, the Trial Chamber found that

14 crimes of murder and cruel treatment were committed against Serbs

15 detained in Srebrenica during two periods: First, from 24 September to

16 16 October 1992; and, second, from 15 December 1992 to 20 March 1993. It

17 found that the military police was responsible for the occurrence of all

18 these crimes. Furthermore, it found that the military police was

19 subordinated to Naser Oric, through the successive Chiefs of Staff of the

20 Srebrenica armed forces, only after 27 November 1992.

21 Naser Oric was found guilty pursuant to Articles 3 and 7(3) of

22 the Statute for failing to discharge his duty as a superior to take

23 necessary and reasonable measures to prevent the crimes of murder, Count

24 1, and cruel treatment, Count 2, committed against Serb detainees between

25 27 December 1992 and 20 March 1993. Because he was not found to have had

1 effective control over the military police during the first period, Naser

2 Oric was not found responsible for the crimes perpetrated during this

3 period. He was also acquitted of all other charges of the indictment.

4 Naser Oric was sentenced to two years' imprisonment.

5 Both the Prosecution and Naser Oric lodged appeals against the

6 trial judgement. I will first address Naser Oric's appeal before turning

7 to the Prosecution's appeal.

8 Naser Oric's appeal consists of 13 grounds. His first and fifth

9 grounds of appeal both raise the crucial issue of whether the

10 Trial Chamber failed to make necessary findings to support a conviction

11 under Article 7(3) of the Statute. Due to their possible impact on the

12 remainder of his appeal, the Appeals Chamber has deemed it appropriate to

13 consider these submissions first.

14 Naser Oric was convicted under Article 7(3) of the Statute. For

15 a superior to incur criminal responsibility under Article 7(3), in

16 addition to establishing beyond reasonable doubt that his subordinate is

17 criminally responsible, the following elements must be established beyond

18 reasonable doubt: Firstly, the existence of a superior/subordinate

19 relationship; secondly, that the superior knew or had reasons to know

20 that his subordinate was about to commit a crime or had done so; and,

21 thirdly, that the superior failed to take the necessary and reasonable

22 measures to prevent his subordinate's criminal conduct or punish his

23 subordinate.

24 The Trial Chamber was obliged to make findings on each of these

25 elements before being entitled to enter a conviction.

1 Naser Oric submits that the Trial Chamber failed to specify who

2 his corresponding subordinates were. The Appeals Chamber notes that none

3 of the principal perpetrators were found to be members of the military

4 police or directly subordinated to Naser Oric. The Trial Chamber found

5 that "the head" of the military police after 27 November 1992, Atif

6 Krdzic, was subordinated to him. Atif Krdzic, who was not an accused

7 before this Tribunal, was found responsible for the crimes of murder and

8 cruel treatment committed between December 1992 and March 1993. It

9 follows that the Trial Chamber found that Oric's subordinates responsible

10 for the crimes for which he was convicted was Atif Krdzic. Naser Oric's

11 contention that no subordinate was identified is therefore dismissed.

12 In this respect, the Prosecution submits that even if Atif Krdzic

13 had not been identified as military police commander, Naser Oric could

14 still have been held responsible for other unidentified members of the

15 military police who aided and abetted the crimes. The Appeals Chamber

16 stresses that, notwithstanding the degree of specificity with which the

17 culpable subordinates must be identified, their existence as such must be

18 established in any event. In the present case, the Trial Chamber did not

19 identify any member of the military police other than Atif Krdzic who

20 took part in the commission of the crimes for which Naser Oric was found

21 responsible, not even by a mere reference to their membership in the

22 military police. The Prosecution's argument fails.

23 Therefore, the Trial Chamber eventually identified only Atif

24 Krdzic as Naser Oric's culpable subordinate.

25 Naser Oric also submits that it is unclear what theory of

1 criminal liability the Trial Chamber applied to his alleged subordinates,

2 and that this lack of clarity is in itself an error of law. The

3 Prosecution concedes that the Trial Chamber did not expressly designate a

4 legal classification for the responsibility of the military police, but

5 submits that "it is reasonable to conclude" that the Trial Chamber found

6 that the military police through their omissions aided and abetted the

7 murders and cruel treatment committed by the principal perpetrators.

8 The Appeals Chamber notes that the Trial Chamber did not specify

9 the basis for the criminal responsibility of Naser Oric's only identified

10 culpable subordinate from the military police, Atif Krdzic. Having

11 considered the Trial Chamber judgement as a whole, the Appeals Chamber is

12 left with only a small number of general findings without any indication

13 of whether and how they relate to any form of criminal liability under

14 the Tribunal's Statute as regards Atif Krdzic. These scattered fragments

15 do not allow the Appeals Chamber to conclude on what basis the

16 Trial Chamber found Naser Oric's only identified culpable subordinate

17 criminally responsible. Yet, such finding would have been required to

18 determine Naser Oric's guilt.

19 For these reasons the Appeals Chamber finds that the

20 Trial Chamber erred in failing to resolve the issue of whether Naser

21 Oric's subordinate incurred criminal responsibility.

22 Under another part of his first ground of appeal, Naser Oric

23 challenges the Trial Chamber's finding that he knew that the military

24 police was responsible for the crimes committed in the detention

25 facilities.

1 The Appeals Chamber notes that, although such a finding was

2 crucial to Naser Oric's conviction, the Trial Chamber made no explicit

3 finding on whether he knew or had reasons to know of Atif Krdzic's

4 alleged criminal responsibility for the mistreatment of Serb detainees.

5 A holistic reading of the trial judgement reveals only vague and

6 inconclusive statements in this respect.

7 The difficulty in detecting the necessary findings by the

8 Trial Chamber on this issue appears to arise from the approach taken in

9 the trial judgement. Rather than examining Naser Oric's knowledge or

10 reason to know of his own subordinate's alleged criminal conduct, the

11 Trial Chamber concentrated its entire analysis on Naser Oric's knowledge

12 of the crimes themselves, which were not physically committed by Atif

13 Krdzic, his only identified culpable subordinate. This approach was

14 ultimately reflected in the Trial Chamber's conclusion on Naser Oric's

15 mens rea, which was squarely limited to the question of whether he knew

16 or had reason to know of the actual crimes committed at the two detention

17 facilities, to the exclusion of any finding on his knowledge of the

18 alleged criminal conduct of his subordinate, Atif Krdzic.

19 The Appeals Chamber considers that knowledge of the crimes and

20 knowledge of a person's criminal conduct are, in law and in fact,

21 distinct matters. Also, knowledge of a person's criminal conduct may,

22 depending on the circumstances, be inferred from knowledge of the crimes.

23 The Appeals Chamber notes that such an inference was not made by the

24 Trial Chamber. Instead, its inquiry was limited to Naser Oric's

25 knowledge of the crimes committed in the detention facilities and so was

1 its conclusion.

2 The Appeals Chambers considers that the Trial Chamber's failure

3 to make a finding on whether Naser Oric knew or had reason to know that

4 Atif Krdzic was about to or had engaged in criminal activity constitutes

5 an error of law.

6 In conclusion, the Appeals Chamber grants Naser Oric's first and

7 fifth grounds of appeal insofar as he alleges therein that the

8 Trial Chamber failed to make findings on the criminal responsibility of

9 his only identified subordinate, Atif Krdzic. Additionally, the

10 Trial Chamber failed to determine whether Naser Oric knew or had reason

11 to know that Atif Krdzic was about to or had committed crimes. In the

12 absence of these findings, Naser Oric's conviction under Article 7(3) of

13 the Statute cannot stand. These errors, therefore, invalidate the

14 Trial Chamber's decision to convict Naser Oric for his failure to prevent

15 his subordinate's alleged criminal conduct in relation to the crimes

16 committed against Serb detainees between December 1992 and March 1993.

17 In response to Naser Oric's appeal, the Prosecution submitted,

18 however, that the Trial Chamber could have convicted Naser Oric for

19 failing to prevent the guards at the detention facilities from committing

20 the crimes or aiding and abetting the crimes of others. It argued that

21 the Trial Chamber should not have stopped its inquiry after concluding

22 that the guards were not members of the military police, but should have

23 gone further and found that they were nevertheless under Naser Oric's

24 effective control. The Appeals Chamber dismisses the Prosecution's

25 submission that Naser Oric could have been convicted based on a

1 superior/subordinate relationship between him and unidentified guards

2 regardless of their membership in the military police. Such a

3 relationship was not pleaded in the indictment. Therefore, the Appeals

4 Chamber also dismisses the Prosecution's submission that Naser Oric's

5 convictions could be sustained on an alternative basis.

6 Accordingly, the Appeals Chamber considers that it need not, at

7 this juncture, address Naser Oric's remaining challenges to the

8 Trial Chamber's factual and legal findings. The Prosecution has raised a

9 number of objections regarding the findings of the Trial Chamber which,

10 if accepted, could lead to a reversal of Naser Oric's acquittal in

11 certain respects. Therefore, before addressing any implications of its

12 findings on Naser Oric's appeal, the Appeals Chamber will first consider

13 the Prosecution's appeal.

14 The Prosecution's appeal was initially composed of five grounds

15 of appeal. The third ground, alleging errors pertaining to wanton

16 destruction in Jezestica, was subsequently withdrawn. The Appeals

17 Chamber notes that the second and fourth grounds are rendered moot as a

18 result of the Appeals Chamber's conclusions on Naser Oric's appeal. The

19 Appeals Chamber therefore limits its analysis to the Prosecution's

20 remaining grounds of appeal.

21 The Prosecution's first ground of appeal is composed of three

22 subgrounds that concern the extent of Naser Oric's criminal

23 responsibility for the crimes of murder and cruel treatment.

24 In the first subground, the Prosecution submits that the

25 Trial Chamber erred, both in law and in fact, in finding that Naser Oric

1 did not have effective control over the military police during the first

2 period, between 24 September and 16 October 1992.

3 The Appeals Chamber finds that the Prosecution fails to

4 demonstrate that the Trial Chamber misapplied the burden of proof or

5 erred in failing to consider that Naser Oric's de jure command over the

6 military police between 24 September and 16 October, 1992, created a

7 rebuttable presumption that he exercised effective control over that

8 unit.

9 In this respect, the Appeals Chamber acknowledges that its

10 jurisprudence might have suggested otherwise, using the terms "presume"

11 or "prima facie evidence of effective control." The import of such

12 language has not always been clear. Although in some common law

13 jurisdictions prima facie evidence leads by definition to a

14 burden-shifting presumption, the Appeals Chamber underscores that before

15 the International Tribunal the Prosecution still bears the burden of

16 proving beyond reasonable doubt that the accused had effective control

17 over his subordinates. The possession of de jure authority, without

18 more, provides only some evidence of such effective control. Before the

19 International Tribunal there is no such presumption to the detriment of

20 an accused.

21 For reasons explained in its judgement, the Appeals Chamber

22 further finds that the Prosecution fails to demonstrate that the

23 Trial Chamber erred in fact when it found that Naser Oric did not have

24 effective control over the military police between 24 September and

25 16 October 1992.

1 The Prosecution further submits that the Trial Chamber erred in

2 law in concluding that Naser Oric could not be held responsible under

3 Article 7(3) of the Statute for failing to punish the crimes of murder

4 and cruel treatment perpetrated between 24 September and 16 October 1992,

5 because they were perpetrated before he assumed effective control over

6 the military police. It argues that the Trial Chamber erred in applying

7 the Appeals Chamber's governing law that an accused cannot be charged

8 under Article 7(3) of the Statute for crimes committed by a subordinate

9 before the said accused assumed command over that subordinate. The

10 Prosecution argues that there are cogent reasons for the Appeals Chamber

11 to depart from this position.

12 The Appeals Chamber recalls that the ratio decidendi of its

13 decisions is binding on Trial Chambers; therefore, the Trial Chamber was

14 correct in considering that it was bound to follow the precedent

15 established by the Appeals Chamber in its decision of 2003 in the

16 Hadzihasanovic case.

17 Turning to the Prosecution's challenge to the ratio decidendi of

18 the Appeals Chamber's decision in Hadzihasanovic, the Appeals Chamber

19 notes that the only member of the military police identified by the

20 Trial Chamber before Oric assumed effective control over it was its

21 commander, Mirzet Halilovic. Mirzet Halilovic was never found to be

22 Oric's subordinate. In the absence of any other military policeman who

23 would have committed a crime in the detention facility prior to

24 27 November 1992, Oric's duty to punish, presuming its existence, was

25 without subject.

1 The Appeals Chamber, Judge Liu and Judge Schomburg dissenting,

2 declines to address the ratio decidendi of the Hadzihasanovic appeal

3 decision on jurisdiction as it has no impact on the outcome of the

4 present case. The Prosecution's subground of appeal is dismissed.

5 The Trial Chamber found that Naser Oric did not have the required

6 mens rea to be held criminally responsible for failing to punish his

7 subordinates for the crimes committed at the detention facilities between

8 December 1992 and March 1993. Under the last part of its first ground of

9 appeal, the Prosecution alleges that had the Trial Chamber applied the

10 "had reason to know" standard correctly, it would have been concluded

11 that Naser Oric had reason to know that crimes of murder and cruel

12 treatment had occurred between 27 December 1992 and 20 March 1993 and

13 convicted him for failing to punish.

14 The Appeals Chamber notes that, whereas responsibility under

15 Article 7(3) of the Statute requires proof of the superior's knowledge or

16 reason to know of his subordinate's criminal conduct, the Prosecution

17 contends that Naser Oric had reason to know that the crimes of murder and

18 cruel treatment themselves had occurred. The Prosecution submits that in

19 the present case, knowledge or reason to know of the crimes and knowledge

20 or reason to know of the subordinate's criminal conduct were "one and the

21 same." The Appeals Chamber considers that the Prosecution fails to

22 substantiate this assertion and, consequently, need not consider any

23 further the Prosecution's present subground of appeal.

24 The Prosecution's first ground of appeal is dismissed in its

25 entirety.

1 I will now turn to the Prosecution's fifth ground of appeal, in

2 which the Prosecution alleges two errors of law that have no impact on

3 the verdict or the sentence against Naser Oric but are, in its view,

4 matters of general importance to the case law of the Tribunal.

5 The Prosecution first submits that the Trial Chamber erred in law

6 in distinguishing between a general and a specific obligation under

7 Article 7(3) of the Statute concerning the duty to prevent crimes as well

8 as in stating that the superior's failure to implement general

9 preventative measures cannot give rise to criminal responsibility. The

10 Appeals Chamber considers that it need not discuss the merits of this

11 alleged error since the law on this issue was recently clearly stated in

12 the Halilovic appeal judgement.

13 Likewise, the Appeals Chamber declines to consider the second

14 alleged error relating to pre-emptive destruction of civilian objects.

15 The Appeals Chamber finds that the Prosecution fails to demonstrate how

16 the particular issue it raises is of general significance to the

17 Tribunal's jurisprudence and considers that the issue raised cannot be

18 properly discussed in abstracto in the context of the present case.

19 For the foregoing reasons, the Prosecution's first ground of

20 appeal is dismissed in its entirety. The Appeals Chamber declines to

21 consider the Prosecution's fifth ground of appeal and considers that the

22 Prosecution's remaining grounds of appeal are rendered moot as a result

23 of the appeal's discussion and conclusion on Naser Oric's appeal.

24 I will now turn to the implications of the foregoing conclusions

25 the Appeals Chamber reached on both appeals.

1 The Appeals Chamber has found that the Trial Chamber failed to

2 resolve whether two legal elements required to hold Naser Oric criminally

3 responsible under Article 7(3) of the Statute were met, yet Naser Oric's

4 entire conviction rested on that mode of liability.

5 The Appeals Chamber notes that neither party advocates a retrial.

6 Moreover, the Prosecution could not point to any evidence, be it

7 additional evidence or evidence on the trial record, supporting its

8 allegations that Naser Oric's subordinates incurred criminal

9 responsibility and that he knew or had reasons to know that they aided

10 and abetted crimes against detained Serbs. The Appeals Chamber therefore

11 considers that, in the circumstances of this particular case, a remand

12 would serve no purpose.

13 In light of the foregoing, the Appeals Chamber finds that the

14 appropriate course of action can only be a reversal of Naser Oric's

15 convictions under Article 7(3) of the Statute.

16 Before turning to the disposition, the Appeals Chamber would like

17 to underscore, like the Trial Chamber, that it has no doubt that grave

18 crimes were committed against Serbs detained in Srebrenica at the

19 Srebrenica police station and the building between September 1992 and

20 March 1993. Also, the Defence did not challenge that crimes were

21 committed against Serb detainees. However, proof that crimes have

22 occurred is not sufficient to sustain a conviction of an individual for

23 these crimes.

24 Criminal proceedings require evidence establishing beyond

25 reasonable doubt that the accused is individually responsible for a crime

1 before a conviction can be entered. Where an accused is charged with

2 command responsibility pursuant to Article 7(3) of the Statute, as it is

3 in the present case, the Prosecution must prove, inter alia, that his

4 subordinates bore criminal responsibility and that he knew or had reasons

5 to know about his or their criminal conduct.

6 The Trial Chamber made no findings on either of these two

7 fundamental elements. The Prosecution, when asked on appeal if there was

8 evidence to support the two elements, failed to point to evidence that

9 could sustain Naser Oric's convictions for the crimes against Serb

10 detainees. Consequently, the conclusion of the Appeals Chamber is the

11 disposition that follows.

12 Mr. Oric, would you please rise.

13 [The appellant stands]

14 JUDGE SCHOMBURG: For the foregoing reasons, the Appeals Chamber,

15 pursuant to Article 25 of the Statute and Rules 117 and 118 of the Rules;

16 noting the respective written submissions of the parties and the

17 arguments they presented at the hearings of 1 and 2 April 2008; sitting

18 in open session; allows in part Oric's grounds of appeal 1(E)(1),

19 1(F)(2), and 5; dismisses the Prosecution's first ground of appeal in its

20 entirety; declines to consider all other grounds of appeal raised by the

21 parties; reverses Oric's convictions under Article 7(3) of the Statute

22 for failing to discharge his duty as a superior to take the necessary and

23 reasonable measures to prevent the occurrence of murder, Count 1, and

24 cruel treatment, Count 2, from 27 December 1992 to March 1993; and finds

25 Oric not guilty on these counts.

1 Judge Mohamed Shahabuddeen appends a declaration. Judge Liu

2 Daqun appends a partially dissenting opinion and declaration. Judge

3 Wolfgang Schomburg appends a separate and partially dissenting opinion.

4 Mr. Oric, you may now be seated.

5 [The appellant sits down]

6 JUDGE SCHOMBURG: I would now like the registrar to please

7 distribute copies of the judgement to the parties in this case.

8 Thank you very much, Madam Registrar.

9 The case Prosecutor versus Naser Oric is finalised. Thank you.

10 --- Whereupon the Appeals Judgement

11 adjourned at 9.35 a.m.

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