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
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
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
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
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
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.