The Prosecutor v. Mitar Vasiljevic - Case No. IT-98-32-A

“Judgement”

25 February 2004
Appeals Chamber (Judges Meron [Presiding], Shahabuddeen, Güney, Schomburg and Weinberg de Roca)

Procedural Background

· On 29 November 2002, the Trial Chamber found Mitar Vasiljevic guilty, in relation to the Drina River incident¹, as a co-perpetrator of persecution as a crime against humanity pursuant to Article 5( h) of the Statute, for the murders of five Muslim men and the inhumane acts inflicted on the two surviving Muslim men (Count 3), and murder as a violation of the laws or customs of war pursuant to Article 3 of the Statute, for the murder of the five Muslim men (Count 5). The Trial Chamber acquitted the Accused on the remaining counts, either because it found the evidence to be insufficient or because the convictions would have been cumulative. For the convictions on Counts 3 and 5, the Trial Chamber imposed a prison sentence of twenty years.²

· On 30 December 2002, Mitar Vasiljevic (“Appellant”) filed his notice of appeal from the Judgement (“First Notice of Appeal”)³ pursuant to Rule 108 of the Rules of Procedure and Evidence.⁴

· On 21 January 2003, the Prosecution filed a motion regarding defects in the First Notice of Appeal, seeking an order that the Appellant be required to re-file the Notice of Appeal since he did not comply with the requirements of the Rules and the Practice Direction.⁵

· On 29 January 2003, the Pre-Appeal Judge found that the First Notice of Appeal did not conform to the requirements of Rule 108 of the Rules and that the Appellant had to re-file a notice of appeal within 14 days.⁶ The Appellant submitted a new Notice of Appeal (“Defence Notice of Appeal”) on 12 February 2003.⁷

· On 29 May 2003, the Appellant filed a motion for extension of time, asking for a 14-day extension to submit the Appellant’s Brief.⁸ The Prosecution filed its response noting that in the event of the Appellant being granted an extension, the Prosecution would request an extension to file its Respondent’s Brief.⁹ On 3 June 2003, the Pre-Appeal Judge ordered the Appellant to file his Appellant’s Brief not later than 24 June 2003 and the Prosecution to file its Respondent’s Brief not later than 18 August 2003.¹⁰

· On 24 June 2003, the Appellant filed the “Defence Appellant’s Brief Against Judgement of November 29, 2002” and an “(Additional) Defence Appeal Brief”.

· On 18 July 2003 the Prosecution filed confidentially its “Prosecution Respondent’s Brief”.¹¹

· On 2 September 2003, the Appellant filed confidentially his Reply¹² and an Additional Reply¹³ to the Prosecution Response.

· On 6 November 2003, noting that the Prosecution Response and the Appellant Reply were filed confidentially, the Pre-Appeal Judge ordered the parties to file redacted public versions of the documents.¹⁴ The Prosecution filed the public version of its Response on 7 November 2003 and the Appellant filed the public version of his Reply on 17 November 2003.

Judgement

The Appeals Chamber allowed Mitar Vasiljevic’s appeal with regard to his convictions as a co-perpetrator of persecution, a crime against humanity (murder and inhumane acts) under Count 3 of the Indictment, and of murder, a violation of the laws or customs of war under Count 5 of the Indictment. It set aside these convictions and found Mitar Vasiljevic guilty of Counts 3 and 5 of the Indictment as an aider and abettor to persecution, a crime against humanity (murder and inhumane acts), and as an aider and abettor to murder, a violation of the laws or customs of war, pursuant to Article 7(1) of the Statute of the Tribunal (“Statute”).¹⁵ The Appeals Chamber dismissed Mitar Vasiljevic’s appeal against convictions in all other respects and dismissed his appeal against sentence. It imposed a new sentence, taking into account his responsibility established on the basis of the convictions entered on appeal. Mitar Vasiljevic was sentenced to fifteen years’ imprisonment to run as of the day of the Judgement, subject to credit being given under Rule 101(C) of the Rules for the period he had already spent in detention, that is from 25 January 2000 to the day of the Judgement. Judge Shahabuddeen appended a separate and dissenting opinion.

Reasoning

Before reviewing the Appellant’s grounds of appeals¹⁶, the Appeals Chamber recalled the standards of review under Article 25 of the Statute ¹⁷ and the case-law of the Tribunal.¹⁸ The present summary will address the question of the law applicable to participation in a joint criminal enterprise as a co-perpetrator or as an aider and abettor, and of the applicable standard of proof. With regard to the sentencing factors, the present summary will address the question as to whether verbal abuse of the victims can be considered an aggravating factor.

Differences between participating in a joint criminal enterprise as a co-perpetrator or as an aider and abettor

Joint criminal enterprise is a form of liability which, although not explicitly referred to in the Statute, existed in customary international law in 1992 and as such is a form of “commission” under Article 7(1) of the Statute.¹⁹ Three categories of joint criminal enterprise have been identified in the Tribunal’s case-law: the “basic” form of joint criminal enterprise, the “systemic” form of joint criminal enterprise, and the “extended” form of joint criminal enterprise.²⁰ While the Trial Chamber considered that the first and second categories of joint criminal enterprise applied to the Drina River incident, the Appeals Chamber considered that only the first category applied to the present case. In this category, all co-perpetrators act pursuant to a common purpose and possess the same criminal intention. When there is, for example, a plan to kill formulated by the participants in such a joint criminal enterprise, the participants do not need to carry out the same role, but all have the intent to kill.

In a joint criminal enterprise, the participants are considered co-perpetrators. As noted by the Appeals Chamber, however, there can also be participants in a joint criminal enterprise by “aiding and abetting”. This participation “is usually considered to incur a lesser degree of individual criminal responsibility than committing a crime”.²¹ The Appeals Chamber noted that when a crime is committed by several co-perpetrators, the aider and abettor is “always an accessory to these co-perpetrators, although the co-perpetrators may not always know of the aider and abettor’s contribution”.²² It pointed to the differences that exist in relation to the actus reus as well as to the mens rea requirements between both forms of individual criminal responsibility:

“(i) The aider and abettor carries out acts specifically directed to assist, encourage or lend moral support to the perpetration of a certain specific crime (murder, extermination, rape, torture, wanton destruction of civilian property, etc.), and this support has a substantial effect upon the perpetration of the crime. By contrast, it is sufficient for a participant in a joint criminal enterprise to perform acts that in some way are directed to the furtherance of the common design.
(ii) In the case of aiding and abetting, the requisite mental element is knowledge that the acts performed by the aider and abettor assist the commission of the specific crime of the principal. By contrast, in the case of participation in a joint criminal enterprise, i.e. as a co-perpetrator, the requisite mens rea is intent to pursue a common purpose.”²³

Standard of proof

The Appeals Chamber recalled that to find an accused criminally responsible as a co-perpetrator in a joint criminal enterprise, the Prosecution must establish that i) the accused voluntarily participated in one aspect of the common purpose even if he or she did not physically commit the crime; and ii) the accused, even if not personally effecting the crime, nevertheless intended this result (emphasis added).²⁴

The Appeals Chamber endorsed the test adopted by the Trial Chamber according to which, when the Prosecution relies upon proof of the state of mind of an accused by inference, that inference must be the only reasonable inference available on the evidence.²⁵ It added that “when a Chamber is confronted with the task of determining whether it can infer from the acts of an accused that he or she shared the intent to commit a crime, special attention must be paid to whether these acts are ambiguous, allowing for several reasonable inferences”.²⁶ In the present case, the Appeals Chamber found, Judge Shahabuddeen dissenting, that “no reasonable tribunal could have found that the only reasonable inference available on the evidence [was] that the Appellant had the intent to kill the seven Muslim men”.²⁷ It found the Appellant guilty as an aider and abettor and expressed its view that “aiding and abetting is a form of responsibility which generally warrants a lower sentence than is appropriate to responsibility as a co-perpetrator”.²⁸

Verbal abuse of the victims as an aggravating factor

Before the finding to that effect in the Trial Chamber Judgement, verbal abuse had never been used at the International Tribunal as an aggravating factor.²⁹ The Appeals Chamber, noting the Trial Chambers’ wide discretion in determining sentence and in considering aggravating factors³⁰, confirmed that “verbal abuse can be taken into account as an aggravating factor by Trial Chambers”.³¹ The Appeals Chamber found, on the basis of the evidence, that the Trial Chamber’s finding that verbal abuse had occurred was reasonable.

Since the Appellant was actually challenging not only whether verbal abuse had occurred but also whether he had personally abused anyone, the Appeals Chamber further held that “regardless of who made it, verbal abuse aggravated the gravity of the crime committed”.³²

Separate and Dissenting Opinion of Judge Shahabuddeen

Judge Shahabuddeen, while agreeing with the Appeals Chamber that the Appellant had criminal responsibility, differed as to the level of the Appellant’s responsibility. In his view, it had not been demonstrated that no reasonable tribunal of fact could have assessed the relevant evidence differently from the way in which the Trial Chamber assessed it. He would accordingly have affirmed the Trial Chamber Judgement that, both on murder and on persecution, the criminal responsibility of the Appellant was that of a co-perpetrator and not that of an aider and abettor.

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1. It was alleged in the Indictment that on or about 7 June 1992 the Accused together with his two co-accused (Milan Lukic and Sredoje Lukic) and other unidentified individuals, had led seven Bosnian Muslim men to the bank of the Drina River. There, they forced them to line up on the bank of the river, facing the river, and opened fire at them. It was alleged that five of the seven died as a result of the shooting while the other two escaped without serious physical injury.
2. Vasiljevic, IT-99-32-T, Judgement (“Trial Chamber Judgement”), 29 November 2002, Judicial Supplement No. 38.
3. Notice of Appeal Against the Trial Judgement of 29 November 2002.
4. Rule 108 (“Notice of Appeal”) reads: “A party seeking to appeal a judgement shall, not more than thirty days from the date on which the judgement was pronounced, file a notice of appeal, setting forth the grounds. The Appellant should also identify the order, decision or ruling challenged with specific reference to the date of its filing, and/or the transcript page, and indicate the substance of the alleged errors and the relief sought. The Appeals Chamber may, on good cause being shown by motion, authorise a variation of the grounds of appeal.”
5. Prosecution Motion Concerning Defects in the Defence Notice of Appeal and Response to Defence Motion for Extension of Time, 3 January 2003. The Defence responded to the Prosecution motion on 21 January 2003 (Defence Reply to the Prosecution Motion Concerning Defects in the Defence Notice of Appeal and Defence Reply to the Prosecution Motion Concerning Defence Motion for Extension of Time Limited, 21 January 2003).
6. Decision on Prosecution Motion Concerning Defects in the Defence Notice of Appeal and on Defence Motion for Extension of Time, 29 January 2003.
7. Notice of Appeal Against Judgement of November 29, 2002.
8. Defence Motion for Extension of Time, 29 May 2003.
9. Prosecution Response to Defence Motion for Extension of Time, 30 May 2003.
10. Decision on Defence and Prosecution Motions for Extension of Time, 3 June 2003. The Pre-Appeal Judge found that the circumstances raised both by the Defence and the Prosecution motions constituted good cause within the meaning of Rule 127 of the Rules. He also considered that it was in the interest of justice to allow the Defence the adequate time to adjust for the changes they had made in the composition of their team.
11. Prosecution Respondent’s Brief, filed confidentially on 18 August 2003.
12. Defence Respondent’s Brief against Prosecution Respondent’s Brief of 18 August 2003, filed confidentially on 2 September 2003.
13. (Additional) Defence Brief in Reply, 2 September 2003.
14. Order to File Redacted Public Versions, 6 November 2003.
15. Article 7(1) (Individual Criminal Responsibility) reads : “1. A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime.”
16. The grounds of appeal are detailed in paras. 192-200 of the Judgement. The Judgement and the summary Judgement are available on the Tribunal’s website at www.un.org/icty under “Judgements”.
17. Article 25 (Appellate Proceedings) reads: “1. The Appeals Chamber shall hear appeals from persons convicted by the Trial Chambers or from the Prosecutor on the following grounds: (a) an error on a question of law invalidating the decision; or (b) an error of fact which has occasioned a miscarriage of justice. 2. The Appeals Chamber may affirm, reverse or revise the decisions taken by the Trial Chambers.”
18. Judgement, paras. 4-12.
19. See Tadic, IT-94-1-A, Judgement (“Tadic Appeals Judgement”), 15 July 1999, paras. 188 and 226.
20. Tadic Appeals Judgement, paras. 195-226. See also the summary of the Krnojelac Appeals Judgement (Krnojelac, IT-97-25-A, Judgement) and the box on joint criminal enterprise in Judicial Supplement No. 45.
21. Para. 102.
22. Ibid.
23. Ibid.
24. Tadic Appeals Judgement, para. 196.
25. Para. 120, referring to para. 68 of the Trial Chamber Judgement. This test was first adopted in Krnojelac, IT-97-25-T, Judgement, 15 March 2002, para. 83, Judicial Supplement No. 31 bis.
26. Para. 131.
27. Ibid.
28. Para. 182 (footnote omitted).
29. Trial Chamber Judgement, para. 276.
30. Article 24(2) of the Statute (Penalties) reads: “2. In imposing the sentences, the Trial Chambers should take into account such factors as the gravity of the offence and the individual circumstances of the convicted person.” Rule 101(B) of the Rules (Penalties) reads: “(B) In determining the sentence, the Trial Chamber shall take into account the factors mentioned in Article 24, paragraph 2, of the Statute, as well as such factors as: (i) any aggravating circumstances; […]”.
31. Para. 161.
32. Para. 162.