Judicial Supplement 28 - The Prosecutor v. Zoran Kupreskic, Mirjan Kupreskic, Vlatko Kupreskic, Drago Josipovic, Dragan Papic and Vladimir Santic

The Prosecutor v. Zoran Kupreskic, Mirjan Kupreskic, Vlatko Kupreskic, Drago Josipovic, Dragan Papic and Vladimir Santic - Case No. IT-95-16-A

"Appeal Judgement"

23 October 2001
Judges Wald [Presiding], Vohrah, Nieto-Navia, Pocar and Liu

Rule 115(B) of the Rules of Procedure and Evidence - Standard for the admission of additional evidence - Criteria for the interests of justice requirement - Rule 117 of the Rules of Procedure - Interpretation - Interests of justice - Evidence - Single identification witness - Witness reliability and credibility - Vagueness of Indictment - Reasoned opinion - Post-conviction co-operation - Cumulative convictions.

(1) The appropriate standard for the admission of additional evidence under Rule 115 of the Rules on appeal is whether the evidence "could" have had an impact on the trial verdict rather than whether it "would probably" have done so.
(2) Rule 117 suggests that even if the decision to admit the evidence is made at the same time as the main appeal, a two-step process is envisioned in which new evidence, once admitted, will then be assessed as to the effect on the appeal as a whole.
(3) The test to be applied by the Appeals Chamber in deciding whether or not to uphold a conviction where additional evidence was admitted before the Chamber is: did the appellant establish that no reasonable tribunal of fact could have reached a conclusion of guilt based on the evidence before the Trial Chamber together with the additional evidence admitted during the appellate proceedings?
(4) In the interests of justice, a Trial Chamber must always proceed with extreme caution when assessing evidence given by a single identification witness under difficult circumstances. Where a finding of guilt is made on the basis of identification evidence given by a single witness under difficult circumstances, the Trial Chamber must be especially rigorous in the discharge of its obligation to provide a reasoned opinion.
(5) An Indictment must set out the material facts of its case against the accused. The material facts must be determined in reference to the nature of the case against the accused. An Indictment must delve into particulars and provide the accused with a description of the charges against him or her with sufficient particularity to enable him or her to prepare a defence.
(6) The fact that the offence of persecution is an "umbrella" crime does not relieve the Prosecution of its obligation to specifically plead the material aspects of its case with the same detail as for other crimes.
(7) In some instances, a defective Indictment may be cured if the Prosecution provides the accused with timely, clear and consistent information detailing the factual basis underpinning the charges against him or her.
(8) A Trial Chamber must proceed with great caution before convicting an accused person based on a trial record which contains patent omissions.
(9) In appropriate cases, co-operation of an accused with the Office of the Prosecutor between conviction and appeal could be a factor that the Appeals Chamber may consider in order to reduce sentence depending on the circumstances of each case and the degree of co-operation.

Procedural Background

Around dawn on the morning of 16 April 1993, Bosnian Croat forces engaged in a surprise attack on the Bosnian Muslim inhabitants of Ahmici, a small village in central Bosnia. The Trial Chamber found that this was not a lawful combat operation but rather a deliberate attack on civilian Muslims by the Croatian Defence Council (HVO) as part of a campaign to cleanse the village of Ahmici of its Bosnian Muslim inhabitants, in turn, part of a broader strategy of expelling Bosnian Muslims from the Lasva River Valley region. The Trial Chamber specifically found that over 100 civilians including women and children were killed in Ahmici and that 169 Muslim homes and the two mosques in the village were destroyed.

This case is one of several emanating from the Ahmici massacre. Others have involved high level civic and military leaders from the region1.

Trial Chamber II rendered the Judgement on 14 January 20002. One of the defendants, Dragan Papic, was acquitted of all charges following the trial. The other five defendants were convicted of persecution as a crime against humanity. Zoran, Mirjan and Vlatko Kupreskic were acquitted of the remaining counts: murder, cruel treatment or inhumane acts as crimes against humanity or violations of the laws or customs of war. They were sentenced to ten, eight and six years' imprisonment respectively. In addition to persecution, Drago Josipovic and Vladimir Santic were each found guilty on one count of murder and one count of inhumane acts both as crimes against humanity and acquitted on one count of murder and one count of cruel treatment as violations of the laws or customs of war. They were sentenced to fifteen and twenty-five years' imprisonment respectively.

The Prosecution and each of the defendants appealed against the Judgement. The Prosecution's appeal was confined to the issue of whether the Trial Chamber had erred in declining to convict Drago Josipovic and Vladimir Santic for violations of the laws or customs of war under Article 3 of the Statute3 as well as for crimes against humanity under Article 5 of the Statute4 based on the same underlying conduct.

The Defendants filed 26 separate Motions to admit a wide variety of additional evidence on appeal which were disposed of under Rule 1155 during the pre-appeal process.

The Judgement

The Appeals Chamber found Zoran Kupreskic, Mirjan Kupreskic and Vlatko Kupreskic not guilty, reversed their convictions and ordered their immediate release. It partially allowed the appeals of Drago Josipovic and Vladimir Santic and reduced their sentences from 15 to 12 years and from 25 to 18 years' imprisonment respectively.

The Reasoning

Appropriate grounds of appeal

The Appeals Chamber underscored that its function is not to carry out a trial de novo6 but is limited to considering specific errors of law or fact occasioning a miscarriage of justice. Regardless of how immaterial the matters are to the findings reached by the Trial Chamber, the appeal procedure is not a forum for the parties to air every complaint they have about the trial or the Judgement.

Reconsideration of factual findings of the Trial Chamber

The Appeals Chamber reiterated that the Trial Chamber must be given a generous margin of deference and that the Appeals Chamber will intervene to overturn factual findings of a Trial Chamber and substitute its own finding only if the evidence relied on by the latter could not have been accepted by any reasonable tribunal of fact or where the evaluation of the evidence is "wholly erroneous"7.

Reconsideration of factual findings where additional evidence has been admitted under Rule 115

The Appeals Chamber underscored that it may exercise its discretion as to whether to decide on the admissibility of additional evidence under Rule 115 during the pre-appeal phase of the proceedings or, alternatively, at the same time as the appeal hearing.

It examined some of the standards governing the application of Rule 115 and, in particular, the standard to be applied by the Appeals Chamber in finally determining whether, in light of the additional evidence admitted, a miscarriage of justice occurred. It reviewed the admission of new evidence on appeal in civil and common law criminal systems. The Appeals Chamber also reviewed the case-law of the Tribunal relating to Rule 115, i.e. (1) the Tadic Rule 115 Decision which interpreted "the interests of justice" as requiring inter alia that "the evidence is such that it would probably show that the conviction was unsafe" (para. 71); and (2) the Decision on Request to Admit Additional Evidence rendered by the Appeals Chamber on 15 November 2000 in the case The Prosecutor v. Goran Jelisic8 in which it further developed the criterion and held that "the admission of additional evidence is in the interests of justice […] if it is such that it would probably show that a conviction or sentence was unsafe" (emphasis added, page 3).

The Appeals Chamber expressed the view that "the more appropriate standard for the admission of additional evidence under Rule 115 on appeal is whether that evidence 'could' have had an impact on the verdict, rather than whether it 'would probably' have done so." It stressed that this change from the earlier formulation in the Tadic Rule 115 Decision "as more a matter of timing than substance." The Appeals Chamber considered that "[t]he 'would probably' standard is still basically appropriate for the ultimate determination of whether a miscarriage of justice has occurred requiring a reversal." It conceded that "regardless of the standard used, it is a difficult task to determine whether the interests of justice require the admission of new evidence." The Appeals Chamber pointed out that it therefore "expects a party seeking to admit evidence to specify clearly the impact the additional evidence could have" on the Decision rendered by the Trial Chamber. It warned that if a party "fails to do so, it runs the risk of the evidence being rejected without detailed consideration."

The Appeals Chamber interpreted Rule 1179 as suggesting that "even if the decision to admit the evidence is made at the same time as the main appeal, a two-step process is nonetheless envisioned in which new evidence, once admitted, will then be assessed as to the effect upon the appeal as a whole." It held that "[t]he test to be applied by the Appeals Chamber in deciding whether or not to uphold a conviction where additional evidence has been admitted before the Chamber is: has the appellant established that no reasonable tribunal of fact could have reached a conclusion of guilt based upon the evidence before the Trial Chamber together with the additional evidence admitted during the appellate proceedings"?10

Zoran and Mirjan Kupreskic

Throughout the trial and in the Trial Chamber Judgement, the cases of the brothers Zoran and Mirjan Kupreskic were closely linked, as they were based on similar allegations of participation in the Ahmici events. Their appeals raised many joint issues that the Appeals Chamber found convenient to address together.

Zoran and Mirjan Kupreskic argued that the Trial Chamber had erred in convicting them of persecution based on material facts not contained in the Amended Indictment. In particular, the Trial Chamber accepted the evidence of Witness H that the brothers were present in Suhret Ahmic's house shortly after he and Meho Hrstanovic were killed and shortly before the surviving occupants of the house were expelled and the house set on fire. The Amended Indictment was completely silent as to the alleged participation of Zoran and Mirjan Kupreskic in the events on 16 April 1993.

Each and every accused person brought before the Tribunal has the right to be informed of the nature and cause of the charges against him and to have adequate time and facilities for the preparation of his defence. This guarantee, enshrined in Article 21 of the Statute11, is at the very heart of an accused person's right to a fair trial. Accordingly, the Prosecution must set out in enough detail in each Indictment the material facts underpinning the crimes alleged so as to inform the accused clearly of the charges against him, thereby enabling him to prepare his defence12. However, there is no requirement to include in the Indictment any reference to the evidence by which such material facts are to be proved13.

Precisely what constitutes a material fact which must be included in the Indictment cannot be determined in abstract. Where the Prosecution alleges that an accused personally committed a discreet number of criminal acts, the material facts will include matters such as the identity of the victim, the time and place of the events and the means by which the acts were committed14.

The Appeals Chamber equally applied the above-mentioned principles of pleading. The attack on Suhret Ahmic's house was a material fact in the Prosecution case against Zoran and Mirjan Kupreskic: at trial, it was one of only two incidents in which, according to the Prosecution, they participated that day. The Trial Chamber however rejected the Prosecution's contention that they participated in the other attack. Their involvement in the attack on Suhret Ahmic's house thus became the nucleus of their persecution conviction. The omission of any reference to the Ahmic attack in the Amended Indictment had to constitute a material defect. The Appeals Chamber noted that the Prosecution expressly chose not to amend the Indictment further so as to include the attack on Suhret Ahmic's house in the interests of expediency. It further underscored that "[t]he goal of expediency can never be allowed to over-ride the fundamental rights of the accused to a fair trial."15

The Appeals Chamber then concluded that the trial of these two defendants was "rendered unfair" as a result of the defects in the Amended Indictment16 and that the Trial Chamber had "erred in law."17 In particular, the Appeals Chamber was not persuaded by the arguments of the Prosecution that any defect was remedied by providing Zoran and Mirjan Kupreskic with adequate notice of the allegations concerning the attack on Suhret Ahmic's house prior to trial. The pre-trial brief, so heavily relied on by the Prosecution during the course of argument on appeal, was extremely general and made no reference to particular attacks or murders implicating the Kupreskic brothers. Even during its opening address at trial, the Prosecution made no reference to the attack on Suhret Ahmic's house. Indeed, on the second-to-last day, the Presiding Judge still sought to understand the precise relevance of Witness H's evidence to the case against Zoran and Mirjan Kupreskic. In addition, throughout the proceedings Defence Counsel consistently objected to the form of the Amended Indictment. In this case, the vagueness of the persecution count in the Amended Indictment goes to the heart of the substantial safeguards that an Indictment is intended to furnish to an accused, i.e. to inform him of the case that he must meet.

Having upheld the objections of Zoran and Mirjan Kupreskic based on the vagueness of the Amended Indictment, the Appeals Chamber considered the issue of whether the appropriate remedy would be to remand the matter for retrial. The Appeals Chamber held that it might understandably be reluctant to allow a defect in the form of the Indictment to determine finally the outcome of a case in which there is strong evidence pointing towards the guilt of the accused. Zoran and Mirjan Kupreskic however raised a number of objections to the factual findings of the Trial Chamber which fatally undermined the evidentiary basis for their convictions.

Foremost among these concerns is that Witness H, who was 13 years old at the time of the attack in Ahmici and 18 years old at the time she gave evidence before the Trial Chamber, was not a sufficiently reliable witness for it to conclude that the accused had participated in the attack on Suhret Ahmic's house. The decision of the Trial Chamber to accept the evidence of Witness H was very heavily influenced by her confident demeanour before the Chamber and her personal certainty that she was correct in her identification of the Kupreskic brothers that morning. There was no other evidence considered credible by the Trial Chamber to corroborate directly the testimony of Witness H.

Witness H was a young woman who, in the wake of the Ahmici massacre in April 1993, assumed a significant degree of responsibility for her surviving family members. Her undeniable courage was reflected in her testimony before the Trial Chamber. The fact that such a witness should make an enormous and positive impression on the Trial Chamber was not surprising.

However after a careful review, the Appeals Chamber concluded that the Trial Chamber's assessment of Witness H's evidence was critically flawed. It found that she was a witness who purported to identify the defendants under extremely difficult circumstances. Her house was attacked in the early morning hours while she and her family were sleeping. Her father was killed as she and the other occupants of the house hid in the basement. The attackers had masked their faces with paint in order to camouflage themselves. The Appeals Chamber underscored "that a Trial Chamber must always, in the interests of justice proceed with extreme caution when assessing evidence given by a single identification witness under difficult circumstances."18 It added that "[w]here a finding of guilt is made on the basis of identification evidence given by a single witness under difficult circumstances, the Trial Chamber must be especially rigorous in the discharge" of its obligation to provide a reasoned opinion19. Although Witness H was a confident and impressive witness, a Trial Chamber must take into account the fact that the degree of certainty expressed by a witness is not necessarily an indicator of reliability when it comes to identification evidence. Rather, a Trial Chamber must thoroughly and carefully consider the evidentiary record as a whole prior to reaching a conclusion about the credibility of the witness. Such caution was not sufficiently reflected in the treatment of Witness H's evidence.

Most significantly, the Trial Chamber utterly failed to direct itself to another material piece of evidence, i.e. the statements of Witness SA, a close relative of Witness H who was also present during the attack on Suhret Ahmic's house. Throughout the trial Zoran and Mirjan Kupreskic insisted that Witness SA be called to testify. They submitted that she was the only other eyewitness who could shed light on the events in the Ahmic house and that she had made prior statements casting doubt on important aspects of Witness H's testimony. At first, it appeared that the Prosecution would itself call Witness SA as part of its case. When the Prosecution later abandoned the idea, the Trial Chamber acknowledged that the Kupreskic brothers would have little chance of securing her attendance as a Defence witness and named Witness SA a witness of the Trial Chamber. However, the Trial Chamber retracted the decision after having been informed by a staff member of the Victims and Witnesses Section that Witness SA could not attend for health reasons. In so doing, the Trial Chamber had erred. Although the Rules provide a Trial Chamber with wide discretion in deciding whom it will name as its witness20, it should not have retracted the decision to call Witness SA. In the absence of certification from a qualified health professional demonstrating that the witness was medically unfit to attend, the retraction was prejudicial to the Defence.

In an attempt to compensate the fact that Witness SA did not appear before the Tribunal, the Trial Chamber agreed to admit six of her prior written statements. The Trial Judgement however reveals that it subsequently reviewed the six statements only in the narrow context of whether they provided support for the evidence of Witness H. The Trial Chamber failed to take the critical step of considering whether Witness SA's statements cast doubt on the identification evidence of Witness H. The Appeals Chamber found that they do and inter alia raise the distinct possibility that Witness H's identification of Zoran, and particularly Mirjan Kupreskic, as participants in the attack on her house gradually developed in the months following the atrocity of April 1993. The trial record reveals that immediately after the attack of April 1993 there was extensive speculation among the Bosnian Muslims of Ahmici and, in particular, the family of Witness H about the involvement of their Croat neighbours in the attack. The Trial Chamber should have evaluated the possibility that Witness H - a child at the time - was influenced in her belated identification by this speculation within her family circle.

The Trial Chamber also failed to direct itself to material discrepancies between the testimony of Witness H and her prior statement which cast doubt on her claim of an adequate opportunity to identify Zoran and Mirjan Kupreskic during the early morning attack. The statements of Witness SA provided no support for the claim of Witness H that she had such an opportunity. The Trial Chamber omitted to make any specific factual findings about these and other crucial matters affecting the credibility of Witness H such as her outright denial that she had made a prior inconsistent statement to an investigating judge in Zenica and her mistaken claim that she had recognised Zoran Kupreskic as an employee of a shop she frequented. The Trial Chamber did not account for the distinct likelihood, stemming from Witness H's description of the Kupreskic brothers' physical appearance that day, that she may have mistaken them for two members of the Jokers unit of which they were not members. The Appeals Chamber did not find that sufficient attention had been paid to these crucial identification questions by the Trial Chamber in order to permit it to conclude that its obligation to provide a reasoned opinion had been satisfied. The Appeals Chamber also benefited from the additional evidence of Witness AT which illuminated certain matters regarding the organisation of the attack in Ahmici and served to highlight some of the difficulties associated with the Trial Chamber's treatment of Witness H's evidence.

In sum, the Appeals Chamber reiterated that the Kupreskic brothers were prejudiced as a result of (1) the Prosecution's failure to allege the attack on the house of Witness H in the Amended Indictment and (2) the late disclosure of her earlier statements. The Defence had only a few weeks to prepare for the cross-examination of the witness who, as it happened, was the lynchpin in the case against them. The Appeals Chamber underscored "that this is not a case where the Trial Chamber addressed all the relevant issues"21 and simply disagreed with the conclusion of the Trial Chamber, finding instead that this was a situation where the Judgement of the Trial Chamber had evidenced a "failure to consider several matters going directly to the credibility of Witness H."22

If the testimony of Witness H is discounted, the cases against Zoran and Mirjan Kupreskic cannot stand. The Trial Chamber drew some support for the allegation of Zoran Kupreskic's participation in the attack on Ahmici from the evidence of Witness JJ. According to this witness, Zoran Kupreskic told her that on the day of the attack in Ahmici and under threat by the Jokers, he shot into the air pretending to be shooting at civilians. Without the evidence of Witness H, the observations of Witness JJ constitute an insufficient basis on which to attribute criminal responsibility to him. The finding of the Trial Chamber that Zoran and Mirjan Kupreskic provided local knowledge and the use of their houses as bases for the attacking troops is similarly unsustainable. Even if all evidence in the trial record is credited, it constitutes a tenuous foundation for such a finding, based as it was on a single witness' testimony that he had seen a group of soldiers at the junction outside the house of Zoran Kupreskic in the late afternoon of 15 April 1993. The additional evidence of Witness AT, previously credited by the Trial Chamber in the case The Prosecutor v. Dario Kordic & Mario Cerkez23, fatally undermines this finding. Witness AT revealed that the decision to attack Ahmici was not made until the afternoon of 15 April and that, to his knowledge, there was no military reconnoitring associated with the attack that afternoon. The assignment of groups to particular sections of the town did not occur until the early morning hours of 16 April 1993. It was also apparent from the Witness AT material that the military police had not relied on the assistance of local Croat inhabitants to plan the attack.

The Appeals Chamber could find no basis for the finding of the Trial Chamber that Zoran and Mirjan Kupreskic were involved in a persecutory campaign stemming back to October 1992. The Trial Chamber provided no description of what illegal conduct it attributed to the defendants during the period October 1992-15 April 1993 when they were alleged to have been involved in the preparation and implementation of the attack of 16 April 1993 in Ahmici. This finding must therefore be rejected due to the absence of any evidentiary basis to support it. The Appeals Chamber concluded that the convictions of Zoran and Mirjan Kupreskic had occasioned a miscarriage of justice and had to be reversed24.

Vlatko Kupreskic

The evidence to support the conviction of Vlatko Kupreskic was the least compelling of that against all five defendants before the Appeals Chamber. The Prosecution did not allege that he was directly involved in any specific attacks on Bosnian Muslim houses on the morning of 16 April 1993. His conviction relied on circumstantial evidence grounded on the findings of the Trial Chamber that he was a police operations officer which led the Trial Chamber to conclude that he had aided and abetted the preparation of the attack in Ahmici.

On appeal Vlatko Kupreskic argued that (1) the factual findings of the Trial Chamber about his involvement in the attack had no basis in the evidence and (2) additional evidence admitted on appeal served to underscore the extreme weakness of the case against him.

The Appeals Chamber accepted that it was reasonable for the Trial Chamber to conclude that Vlatko Kupreskic was a police operations officer on the basis of the trial record. The impugned Judgement suggests that this finding was an important factor in its decision to convict him of persecution. The Trial Chamber inferred from his status as a police officer that his conduct, innocent in its own right, was directed towards assisting, encouraging or lending moral support to the crime of persecution. However, the totality of the evidence, i.e. the trial record and the additional evidence admitted on appeal, overwhelmingly suggests that any police duties undertaken by Vlatko Kupreskic ceased in February 1993. There was no satisfactory evidence that his employment with the police continued until the time of the attack on Ahmici in April 1993.

The Appeals Chamber accepted that the finding of the Trial Chamber that Vlatko Kupreskic assisted the attack by providing his house as a base for the attacking troops was also reasonable on the basis of the original trial record. The evidence of troop movement in and around the defendant's house derived from four separate sources. The Appeals Chamber however admitted additional evidence on this point. The evidence of Witness ADA, who said that he was sitting on a hill outside Vlatko Kupreskic's store throughout the afternoon and early evening of 15 April and saw neither Vlatko Kupreskic nor any troop activity, was not compelling. However, the evidence of Witness AT that the plan to attack Ahmici was not announced until the afternoon of 15 April 1993 and that troops were not deployed to the Bungalow until late into the night of 15-16 April 1993, makes it unlikely that another set of troops would have been dispatched to Vlatko Kupreskic's house much earlier in the day in order to prepare for the attack. The Appeals Chamber consequently concluded that there was serious doubt as to whether there were troops at Vlatko Kupreskic's house in the early evening of 15 April 1993 preparing for the attack the following morning.

The Appeals Chamber held that the remaining evidence against Vlatko Kupreskic provides an insufficient basis on which to conclude that he aided and abetted persecution. A witness gave evidence at trial that, in October 1992, he saw Vlatko Kupreskic unloading "weapons" from his car and taking them into his house. There was no evidence that the "weapons", what kind or how many was not disclosed, were ever used during, or had any connection with, the 16 April 1993 Ahmici attack six months later. The Appeals Chamber expressed the view that it was unreasonable for the Trial Chamber to infer on the basis of such scant evidence that Vlatko Kupreskic had engaged in acts specifically directed to assist, encourage or lend moral support to persecutory acts against Muslim neighbours some six months later.

The Trial Chamber also found that Vlatko Kupreskic was in the vicinity shortly after the attack on Suhret Ahmic's house and thereby concluded that he was ready to lend assistance in whatever way he could to the attacking forces: by providing local knowledge for instance. This finding was based on the evidence of Witness H, corroborated by Witness KL, who testified to seeing Vlatko Kupreskic after the attack on Suhret Ahmic's house in front of the garage. The Appeals Chamber expressed the view that the evidence, even if believed, was an insufficient basis for the Trial Chamber to conclude that Vlatko Kupreskic was assisting in the attack. Admittedly, he lived in the village but in as small a town as Ahmici, it is risky to draw inferences of guilt simply from the fact that a person was seen in the area of an attack, especially if it is close to his own home. This constitutes only circumstantial evidence of his participation in the attack and is an insufficient basis on which to found his conviction for persecution.

The Appeals Chamber then examined the evidence of a witness at trial who claimed that he had seen Vlatko Kupreskic in front of the Hotel Vitez - the headquarters of the Croatian Defence Council in central Bosnia - in the middle of the afternoon on 15 April 1993. The Trial Chamber Judgement referred to the significance of this information but did not clarify it whereas the Appeals Chamber expressed the view that it was an insufficient basis from which to infer that Vlatko Kupreskic aided and abetted persecution.

In short, the Appeals Chamber concluded that the conviction of Vlatko Kupreskic had occasioned a miscarriage of justice and had to be reversed.

Drago Josipovic

Drago Josipovic advanced four grounds to support his appeal against conviction.

I - He complained that the Trial Chamber had erred by returning a conviction for persecution based on the evidence of Witness DD who testified that Drago Josipovic was a member of the group which attacked Nazif Ahmic's house on 16 April 1993. This attack was not pleaded in the Amended Indictment. Zoran and Mirjan Kupreskic had made a similar argument about the vagueness of the persecution count in the Amended Indictment.

The allegations against Drago Josipovic in the Amended Indictment were broad: he was accused of persecution based on the systematic killing of Bosnian Muslims and the comprehensive destruction of their property as well as the organised detention and expulsion of Bosnian Muslims from the Ahmici-Santici area. At trial however the Prosecution sought only to prove his participation in attacks on three specific Bosnian Muslim houses in Ahmici on the morning of 16 April 1993. The Prosecution could and should have included specific details in the Amended Indictment about the few attacks in which it sought to implicate Drago Josipovic.

Persecution as a crime against humanity under Article 5 of the Statute is, admittedly, a broad offence often comprising a series of acts. The so-called "umbrella" nature of the crime does however not release the Prosecution from its obligation to plead specifically in the Indictment the material facts on which the persecution charge is based. The same detail is required for other crimes. The crime of persecution cannot be regarded as a catch-all offence for any criminal conduct on the part of the accused which emerges during trial and which is not otherwise pleaded in the Indictment. The Prosecution must particularise the material facts of the alleged criminal conduct of the accused which allegedly define the role of the defendant in the persecution. If it fails to do so, the Indictment suffers from a material defect since such an omission precludes, or at least impacts negatively on, the ability of the accused to prepare his defence.

The Appeals Chamber unequivocally found that the alleged involvement in the attacks on the homes of Musafer Puscul and Nazif Ahmic were material facts underlying the Prosecution's charge of persecution. Although they should have been, the attacks were not specifically pleaded as part of the persecution count.

The Appeals Chamber did not exclude the possibility that, in some instances, a defective Indictment can be cured if the Prosecution provides the accused with timely, clear and consistent information setting out the factual basis of the charges against him. In the instant case, the Appeals Chamber accepted that Drago Josipovic did have sufficient notice of his alleged involvement in the attack on the house of Musafer Puscul. Although the attack was not specifically referred to in the count of persecution, it was pleaded elsewhere in the Amended Indictment as the basis for a charge of murder as a crime against humanity. In that situation, the Appeals Chamber found that the failure to plead the Puscul attack specifically as part of the persecution count did not materially prejudice Drago Josipovic in the preparation of his defence. The participation of the Appellant in the attack on the house of Musafer Puscul can therefore serve as a legitimate foundation for his conviction of persecution. By contrast, the Appeals Chamber did not accept that Drago Josipovic received sufficient notice of his alleged participation in the attack on Nazif Ahmic's house which was omitted from the Amended Indictment altogether. For that reason, it accepted the argument of Drago Josipovic that the Trial Chamber was not at liberty to rely on his participation in the attack as part of his persecution conviction.

II - Drago Josipovic submitted that the Trial Chamber had erred in accepting the evidence of Witness EE as a sufficiently reliable basis on which to conclude that he participated in the attack on Musafer Puscul's house. In particular, the fact that the Trial Chamber had accepted the evidence of Witness EE even though she was clearly mistaken in her identification of two other men - whom she knew well - among the attackers.

Drago Josipovic did not argue that the Trial Chamber had failed to direct itself to any material aspect of the trial record which undermined the credibility of Witness EE. Rather, it was obvious to the Appeals Chamber that the Trial Chamber was fully aware that Witness EE was mistaken in her purported identification of at least two of the six attackers at the Puscul house but that it chose to accept her evidence nonetheless. Drago Josipovic requested the Appeals Chamber to adopt a different conclusion on the credibility of Witness EE from that of the Trial Chamber.

A Trial Chamber is at liberty to reject one part of a witness' testimony whilst accepting another. In the instant case, the decision of the Trial Chamber to rely on Witness EE's identification of Drago Josipovic as a participant in the Puscul attack was supported by various other aspects of the trial record. Most significantly, the Trial Chamber had before it evidence that Drago Josipovic had participated in an additional attack similar to the one on the Puscul house in the same neighbourhood and during the same time period. The Appeals Chamber had already held that that Drago Josipovic's participation in the attack on Nazif Ahmic's house cannot serve as a legitimate basis for his conviction of persecution because the incident was not pleaded in the Amended Indictment. Witness DD's evidence of his participation in the attack can however be considered as evidence corroborating Drago Josipovic's participation in the attack on Musafer Puscul's house.

III - Drago Josipovic pursued only one challenge to the credibility of Witness DD which is based on a statement of Witness CA admitted as additional evidence on appeal. The Appeals Chamber did not accept that the additional evidence so undermined Witness DD's credibility that it renders unreliable her identification of Drago Josipovic as one of the attackers on the home of Nazif Ahmic. In sum, it heard no argument on appeal that would expose as unreasonable the reliance of the Trial Chamber on Witness DD's evidence as corroboration of Witness EE's.

IV - Drago Josipovic contended that the additional evidence of Witness AT admitted by the Appeals Chamber under Rule 115 calls into question the safety of his conviction. Witness AT testified before Trial Chamber III in the case The Prosecutor v. Dario Kordic & Mario Cerkez25 that he was present during the attack on Musafer Puscul's house and that Witness EE was mistaken about a third person she identified amongst the attackers at Musafer Puscul's house. Witness AT also claimed categorically that Drago Josipovic was not amongst the group. The Appeals Chamber rejected the argument of the Appellant that the new evidence fatally undermines the conclusion of the Trial Chamber which had found that he was involved in the attack. In admitting Witness AT's evidence, the Appeals Chamber emphasised that it was credible insofar as it concerned the preparation and planning of the attack in Ahmici. The Appeals Chamber concluded that insofar as the evidence of Witness AT relates to other participants in the attack, it is similarly unreliable. Drago Josipovic failed to establish that no reasonable tribunal of fact could have reached a conclusion of guilt based on the evidence before the Trial Chamber together with the additional evidence admitted during the appeal proceedings.

The Appeals Chamber determined that the interests of justice compel consideration of whether there was sufficient evidence before the Trial Chamber to justify the conclusion that the Appellant played a command role over soldiers during the attack in Ahmici, although Drago Josipovic formally abandoned these allegations of error during the appeal process26. The Appeals Chamber expressed the view that there was not sufficient evidence and that the Trial Chamber had erred in drawing such a conclusion on the basis of the trial record.

The Appeals Chamber thus found that the Trial Chamber had erred in only two respects: (1) in returning a conviction for persecution partly based on his role in the attack on the house of Nazif Ahmic which was not pleaded in the Amended Indictment and (2) in making a factual finding that he had held a command position vis-à-vis other soldiers involved in the attack. For these reasons, the Appeals Chamber considered that the sentence imposed on Drago Josipovic should be reduced27. It found no merit in any of his other grounds of appeal regarding conviction and sentence.

Vladimir Santic

The Appeals Chamber considered that there was ample credible evidence before the Trial Chamber that Vladimir Santic was both 1st Company of 4th Battalion HVO Military Police Commander and Commander of the anti-terrorist unit known as the Jokers formed within the 4th Battalion. Given the participation of the units in the Ahmici attack, it was reasonable for the Trial Chamber to infer that the Appellant had a command role during that attack. It was also open to the Trial Chamber to conclude, as it did for the purposes of sentencing, that as part of his command role, Vladimir Santic passed on orders relating to the attack from his superiors to his subordinates. The Appeals Chamber rejected the Appellant's claim that the evidence of Witness AT - a Prosecution witness in the case The Prosecutor v. Dario Kordic & Mario Cerkez - admitted as additional evidence on appeal, casts doubt on the Trial Chamber's findings regarding Vladimir Santic's command role. For the purposes of the appeal, Witness AT is not a credible witness and her testimony impugns the basis of the Trial Chamber Judgement. Furthermore, the Appeals Chamber emphasised that the interposition of a brand new defence after trial through the testimony of Witness AT must be viewed with extreme scepticism.

For the purposes of sentencing the Appeals Chamber did accept that the Trial Chamber was mistaken in inferring that Vladmir Santic had been involved in the overall strategic planning of the attack. The Prosecution adduced no evidence at trial that the Appellant was amongst the architects of the assault strategy in Ahmici and this fact should not have entered into his sentencing decision.

The Appeals Chamber emphasised that it would have been preferable for the Prosecution to allege in the Amended Indictment that Vladimir Santic held a command position rather than simply describing him as a soldier of the Croatian Defence Council. The charges brought against him were based on his individual participation in the attack and not on any theory of command responsibility. While it is true that the Trial Chamber relied on his command role as an aggravating factor for the purposes of sentencing, there is no legal requirement that the Prosecution plead aggravating factors in an Indictment. Furthermore, the Appeals Chamber underscored that, even after knowing the Prosecution had adduced evidence about his command role during the course of the trial, the Appellant made no effort to dispute it but he continued to defend himself by reliance on a false alibi.

The Appeals Chamber also rejected Vladimir Santic's claim that the Trial Chamber had erred in its assessment that he played an active role in the attack on the Puscul home on the morning of 16 April 1993. Witness AT's claim that the Appellant did not participate in the attack but held back and "leaned against the wall" is not sufficiently reliable to cast any doubt on the determination of the Trial Chamber in this regard.

Vladimir Santic argued that, since his conviction, he has accepted guilt, expressed sincere remorse for his participation in the attack on Ahmici and co-operated substantially with the Prosecution by assisting it with its investigations. The Prosecution confirmed the co-operation of the Appellant. The Appeals Chamber accepted that Vladimir Santic assumed responsibility for his role in the attack on Ahmici to a limited degree. Furthermore, although nothing in the Statute or the Rules expressly addresses the issue, the Appeals Chamber found that, in appropriate cases and depending on the circumstances of each case and the degree of co-operation, co-operation by an accused between conviction and appeal may justify a reduction in the sentence28. In the instant case, it found that a reduction in sentence was justified.

In sum, the Appeals Chamber found that the Trial Chamber had erred only in inferring that Vladimir Santic assisted with the strategic planning of the attack in Ahmici and then considering this an aggravating factor in his sentence. In combination with the Appelant's acceptance of partial guilt and his substantial post-conviction co-operation with the Prosecution, the Appeals Chamber considered him eligible for a reduction in sentence29. The Appeals Chamber found no merit in any of his other grounds of appeal regarding conviction and sentence.

Prosecution Appeal

The Prosecution claimed that the Trial Chamber had erred in failing to enter convictions for Drago Josipovic and Vladimir Santic under Article 3 of the Statute based on the same underlying conduct as their convictions under Article 5 of the Statute. The issues of cumulative charging and convictions were clarified in the case-law of the Tribunal in the period between the Trial Chamber Judgement and the hearing of this appeal. Following the Judgements of the Appeals Chamber on 20 February and 5 July 2001 in the cases The Prosecutor v. Zejnil Delalic et al.30 and Goran Jelisic31 respectively, it is now beyond dispute that cumulative charging is allowed and that cumulative convictions under Articles 3 and 5 of the Statute are permitted32. For this reason, the Appeals Chamber upheld the appeal of the Prosecution and found that the Trial Chamber had erred in failing to convict Drago Josipovic and Vladimir Santic of murder and cruel treatment as violations of the laws or customs of war under Article 3 of the Statute. However, given that the Prosecution specifically stated that it was only seeking a reversal of the acquittals and not an increase in the terms of imprisonment imposed on each of the accused, the additional convictions have not been considered for the purposes of sentencing.

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1. See The Prosecutor v. Tihomir Blaskic ("Lasva River Valley"), Case No. IT-95-14-T, Trial Chamber I, Judgement, 3 March 2000 (summarised in Judicial Supplement No. 13); The Prosecutor v. Anto Furundzija ("Lasva River Valley"), Case No. IT-95-17/1-A, Appeals Chamber, Judgement, 21 July 2000 (hereinafter the "Furundzija Appeals Chamber Judgement", summarised in Judicial Supplement No. 18); The Prosecutor v. Dario Kordic & Mario Cerkez ("Lasva River Valley"), Case No. IT-95-14/2-T, Trial Chamber III, Judgement, 26 February 2001 (summarised in Judicial Supplement No. 23).
2. The Prosecutor v. Zoran Kupreskic et al. ("Lasva River Valley"), Case No. IT-95-16-T, Trial Chamber II, Judgement, 14 January 2000 (summarised in Judicial Supplement No. 11).
3. "The International Tribunal shall have the power to prosecute persons violating the laws or customs of war. Such violations shall include, but not be limited to:
(a) employment of poisonous weapons or other weapons calculated to cause unnecessary suffering;
(b) wanton destruction of cities, towns or villages, or devastation not justified by military necessity;
(c) attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings;
(d) seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science;
(e) plunder of public or private property."
4. "The International Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population:
(a) murder;
(b) extermination;
(c) enslavement;
(d) deportation;
(e) imprisonment;
(f) torture;
(g) rape;
(h) persecutions on political, racial and religious grounds;
(i) other inhumane acts."
5. "(A) A party may apply by motion to present before the Appeals Chamber additional evidence which was not available to it at the trial. Such motion must be served on the other party and filed with the Registrar not less than fifteen days before the date of the hearing.
(B) The Appeals Chamber shall authorise the presentation of such evidence if it considers that the interests of justice so require."
6. See also The Prosecutor v. Dusko Tadic ("Prijedor"), Case No. IT-94-1-A, Appeals Chamber, Decision on Appellant's Motion for the Extension of the Time-Limit and Admission of Additional Evidence, 15 October 1998 (hereinafter the "Tadic Rule 115 Decision", in which the Appeals Chamber held that "an appeal does not involve a trial de novo." (Para. 41); Judgement, 15 July 1999 (hereinafter the "Tadic Appeals Chamber Judgement", summarised in Judicial Supplement No. 6), Separate Opinion of Judge Shahabuddeen, para. 29; Furundzija Appeals Chamber Judgement, para. 40.
7. See also Tadic Appeals Chamber Judgement, para. 64; Separate Opinion of Judge Shahabuddeen, para. 30; The Prosecutor v. Zlatko Aleksovski ("Lasva River Valley"), Case No. IT-95-14/1-A, Appeals Chamber, Judgement, 24 March 2000 (summarised in Judicial Supplement No. 13), para. 63; The Prosecutor v. Zejnil Delalic et al. ("Celebici prison-camp"), Case No. IT-96-21-A, Appeals Chamber, Judgement, 20 February 2001 (summarised in Judicial Supplement No. 23), paras. 202-203 and 491.
8. The Prosecutor v. Goran Jelisic ("Brcko"), Case No. IT-95-10-a, Appeals Chamber, Decision on Request to Admit Additional Evidence, 15 November 2000.
9. "(A) The Appeals Chamber shall pronounce judgement on the basis of the record on appeal together with such additional evidence as has been presented to it.
(B) The judgement shall be rendered by a majority of the Judges. It shall be accompanied or followed as soon as possible by a reasoned opinion in writing, to which separate or dissenting opinions may be appended.
(C) In appropriate circumstances the Appeals Chamber may order that the accused be retried according to law.
(D) The judgement shall be pronounced in public, on a date of which notice shall have been given to the parties and counsel and at which they shall be entitled to be present."
10. Para. 75. See also The Prosecutor v. Alfred Musema, Case No. ICTR-96-13-A, Appeals Chamber, Judgement, 16 November 2001, in which the Appeals Chamber of the ICTR endorsed such principles in the case where the admission of new evidence occasions a review of the factual findings of the Trial Chamber (paras. 185 and 186).
11. Article 21(4)(b) of the Statute provides that "[i]n the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality […] to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing". See The Prosecutor v. Milorad Krnojelac ("Foca-KP Dom Camp"), Case No. IT-97-25-PT, Trial Chamber II, Decision on the Defence Preliminary Motion on the Form of the Indictment, 24 February 1999 (summarised in Judicial Supplement No. 2).
12. See The Prosecutor v. Radoslav Brdjanin & Momir Talic ("Krajina"), Case No. IT-99-36-PT, Trial Chamber II, Decision on Form of Further Amended Indictment and Prosecution Application to Amend, 26 June 2001 (hereinafter the "Brdjanin & Talic Decision", summarised in Judicial Supplement No. 25), para. 62.
13. Rule 65(E)(i) provides that "[o]nce any existing preliminary motions filed within the time-limit provided by Rule 72 are disposed of, the pre-trial Judge shall order the Prosecutor, upon the report of the Senior Legal Officer, and within a time-limit set by the pre-trial Judge and not less than six weeks before the Pre-Trial Conference required by Rule 73 bis, to file [ …] the final version of the Prosecutor's pre-trial brief including, for each count, a summary of the evidence which the Prosecutor intends to bring regarding the commission of the alleged crime and the form of responsibility incurred by the accused; this brief shall include any admissions by the parties and a statement of matters which are not in dispute; as well as a statement of contested matters of fact and law".
14. Para. 89. See also Brdjanin & Talic Decision, para. 59. This finding was subsequently applied in The Prosecutor v. Milomir Stakic ("Prijedor"), Case No. IT-97-24-PT, Trial Chamber I, Decision on the Defence Motion objecting to the Form of the Indictment, 13 November 2001, para. 20; and in The Prosecutor v. Radoslav Brdjanin & Momir Talic (“Krajina”), Case No. IT-99-36-PT, Trial Chamber II, Decision on Form of Fourth Amended Indictment, 23 November 2001, paras. 6 and 12.
15. Para. 100.
16. Para. 122.
17. Para. 124.
18. Para. 134.
19. Para. 135.
20. Rule 98 provides in fine that "[a] Trial Chamber […] may proprio motu summon witnesses and order their attendance."
21. Para. 224.
22. Idem.
23. The Prosecutor v. Dario Kordic & Mario Cerkez ("Lasva River Valley"), Case No. IT-95-14/2, Trial Chamber III.
24. See also The Prosecutor v. Alfred Musema, Case No. ICTR-96-13-A, Appeals Chamber, Judgement, 16 November 2001, in which, in accordance with the test applied in the instant case, the Appeals Chamber of the ICTR expressed the view that the appropriate remedy was to nullify the conviction of rape as a crime against humanity handed down by the Trial Chamber (count 7 of the Indictment).
25. The Prosecutor v. Dario Kordic & Mario Cerkez ("Lasva River Valley"), Case No. IT-95-14/2-T, Trial Chamber III.
26. Para. 355. See also The Prosecutor v. Dusko Tadic ("Prijedor"), Case No. IT-94-1-A, Appeals Chamber, Judgement, 15 July 1999 (summarised in Judicial Supplement No. 6), paras. 247, 281, 315 and 316; see also The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-A, Appeals Chamber, Judgement, 1 June 2001, in which the majority considered that the Appeals Chamber possessed an inherent discretionary power to hear appeals on issues of fundamental importance and general significance to the case-law of the Tribunal subject to two conditions, i.e.: (1) "if it finds that their resolution is likely to contribute substantially to the development of the Tribunal's”case-law (para. 23); and (2) if the grounds of appeal “have a nexus with the case at hand.” (Para. 24) The majority of the Appeals Chamber reiterated that it does not possess the power to give advisory opinions. It considered that “the need to pass on issues of general importance is justified in light of the Appeals Chamber's role in unifying the applicable law. Indeed, the Appeals Chamber must provide guidance to the Trial Chambers in interpreting the law.” (Para. 21) The Appeals Chamber therefore expressed the view that “in deciding to pass on an issue of general importance, it is playing its role of unifying the law." (Para. 22) Judge Rafael Nieto-Navia appended a Dissenting Opinion in which he disagreed with that decision and expressed the view that "all grounds of appeal which do not strictly fit within the terms of Article 24 of the [I.C.T.R.] Statute cannot, and […] should not, be entertained by the Appeals Chamber." (Para. 7) The Judge added that broadening "the scope of the Statute […] is a slippery and dangerous path for the Appeals Chamber to take" (paras. 8 and 9).
27. Paras. 437 to 439.
28. Para. 463.
29. Paras. 465 to 466.
30. The Prosecutor v. Zejnil Delalic et al. ("Celebici"), Case No. IT-96-21-A, Appeals Chamber, Judgement, 20 February 2001 (summarised in Judicial Supplement No. 23), paras. 400 to 426.
31. The Prosecutor v. Goran Jelisic ("Brcko"), Case No. IT-95-10-A, Appeals Chamber, Judgement, 5 July 2001 (summarised in Judicial Supplement No. 26), para. 82.
32. See also The Prosecutor v. Dragoljub Kunarac et al. ("Foca"), Case No. IT-96-23-T & IT-96-23/1-T, Trial Chamber II, Judgement (summarised in Judicial Supplement No. 23), para. 552.