Case No. IT-02-60-T
IN TRIAL CHAMBER I, SECTION A
Before:
Judge Liu Daqun, Presiding
Judge Volodymyr Vassylenko
Judge Carmen Argibay
Registrar:
Mr. Hans Holthuis
Judgement of:
5 April 2004
PROSECUTOR
v.
VIDOJE BLAGOJEVIC
DRAGAN JOKIC
__________________________________________
JUDGEMENT ON MOTIONS FOR ACQUITTAL PURSUANT TO RULE 98 BIS
__________________________________________
The Office of the Prosecutor:
Mr. Peter McCloskey
Mr. Stefan Waespi
Counsel for the Accused:
Mr. Michael Karnavas and Ms. Suzana Tomanovic for Vidoje Blagojevic
Mr. Miodrag Stojanovic and Mr. Branko Lukic for Dragan Jokic
CONTENTS
I. INTRODUCTION
II. THE APPLICABLE STANDARD OF REVIEW UNDER RULE 98 BIS
III. THE SUBSTANCE OF THE MOTIONS FOR ACQUITTAL
A. The law on Article 7 of the Statute
B. Vidoje Blagojevic’s Motion
1. Vidoje Blagojevic’s alleged involvement in the commission
of crimes
(a) Involvement in, and knowledge of criminal activities
(b) Control over troops involved in criminal activities
2. Vidoje Blagojevic’s responsibility for the crimes of extermination
and murder
(a) Opportunistic killings (paragraphs 43, 45, 47-48 of
the Indictment)
(b) Vidoje Blagojevic’s alleged responsibility under Article
7 of the Statute
3. Blagojevic’s alleged responsibility for the crime of forcible
transfer
4. Vidoje Blagojevic’s alleged responsibility for the crime
of persecutions
5. Vidoje Blagojevic’s alleged responsibility for the crime
of complicity in genocide
C. Dragan Jokic’s Motion
1. The crimes with which Dragan Jokic has been charged
2. Dragan Jokic’s role, as chief of engineering of the Zvornik
Brigade, in the burial and reburial operations
3. Dragan Jokic’s role, as brigade duty operations officer
on 14 and 15 July 1995, in co-ordinating communication between VRS officers
and commands involving the transportation, detention, execution and burial of
Srebrenica Bosnian Muslims
4. Dragan Jokic’s alleged responsibility for the crimes of
murder, extermination and persecutions
(a) Planning, instigating, and ordering
(b) Committing as a member of a joint criminal enterprise
(c) Aiding and Abetting in the planning, preparation or execution
of the crimes
IV. DISPOSITION
I. INTRODUCTION
- Pending before Trial Chamber I, Section A (“Trial Chamber”) of the International
Tribunal for the Prosecution of Persons Responsible for Serious Violations
of International Humanitarian Law Committed in the Territory of the Former
Yugoslavia since 1991 (“Tribunal”) are the motions for the entry of judgement
of acquittal of the Accused Vidoje Blagojevic (“Blagojevic Motion”) and Dragan
Jokic (“Jokic Motion”), filed on 2 March 2004.1
- The Office of the Prosecutor (“Prosecution”) filed an Amended Joinder Indictment
on 27 May 2002 against Vidoje Blagojevic, Dragan Jokic, Momir Nikolic and
Dragan Obrenovic. Momir Nikolic pleaded guilty on 7 May 2003 and a sentencing
judgement was rendered against him on 2 December 2003. Dragan Obrenovic pleaded
guilty on 21 May 2003 and a sentencing judgement was rendered against him
on 10 December 2003. Following these guilty pleas, the Prosecution filed a
Amended Joinder Indictment against the remaining accused, Vidoje Blagojevic
and Dragan Jokic (“Accused”), on 26 May 2003 (“Indictment”). It is upon this
Indictment which the case against the Accused was brought by the Prosecution.
- The Indictment alleges that Vidoje Blagojevic and Dragan Jokic participated,
inter alia, in the forcible transfer of the women and children from
the Srebrenica enclave to Kladanj, on 12 and 13 July 1995, as well as in the
capture, detention, mass execution, burial and reburial of thousands of Bosnian
Muslim men and boys aged 16 to 60 from the Srebrenica enclave, from 12 to
19 July 1995.2
- The Indictment alleges that Vidoje Blagojevic was the commander of the
First Bratunac Light Infantry Brigade (“Bratunac Brigade”) during the indictment
period (from 11 July to 1 November 1995) and that he participated, in this
capacity, in mass killings in and around, and the forcible transfer of civilians
out of, the Srebrenica enclave during the indictment period. He is also accused
of participating in the reburial operation that occurred from about 1 August
through about 1 November 1995.3 As a result, Vidoje
Blagojevic is charged with the following crimes, under both Articles 7(1)
and 7(3) of the Statute of the Tribunal (“Statute”):
- in Count 1B4 with complicity to commit genocide,
punishable under Article 4(3)(e) of the Statute,
- in Count 2 with extermination, a crime against humanity punishable under
Article 5(b) of the Statute,
- in Counts 3 and 4 with murder, as a crime against humanity punishable
under Article 5(a) of the Statute, and as a violation of the laws or customs
of war punishable under Article 3 of the Statute,
- in Count 5 with persecutions, a crime against humanity punishable under
Article 5(h) of the Statute, through murder, cruel and inhumane treatment,
terrorising of civilians, destruction of personal property and effects and
forcible transfer,
- in Count 6 with inhumane acts (forcible transfer), a crime against humanity
punishable under Article 5(i) of the Statute.
- The Indictment alleges that Dragan Jokic was the chief of engineering of
the First Zvornik Infantry Brigade (“Zvornik Brigade”) during the indictment
period.5 In addition, the Indictment alleges that
he was the duty operations officer of the Zvornik Brigade from the morning
of 14 July 1995 through the morning of 15 July 1995.6
Dragan Jokic is accused of having “assisted in the planning, monitoring, organising
and carrying out of the burials involved in the murder operation” and “as
Brigade duty operations officer on 14 and 15 July 1995, assisted in co-ordinating
communication between VRS (Army of Republika Srpska( officers and commands
involving the transportation, detention, execution and burial of Srebrenica
Muslim and issued or transmitted reports and updates to superiors on the progress
of the overall murder operation.”7 The forces
of the Zvornik Brigade Engineering Company are also alleged to have participated
in the reburial operation under his direction.8
As a result, Dragan Jokic is charged with the following crimes, under Article
7( 1) of the Statute:
- in Count 2 with extermination, a crime against humanity punishable under
Article 5(b) of the Statute,
- in Counts 3 and 4 with murder, as a crime against humanity punishable
under Article 5(a) of the Statute, and as a violation of the laws or customs
of war punishable under Article 3 of the Statute,
- in Count 5 with persecutions, a crime against humanity punishable under
Article 5(h) of the Statute, through murder, cruel and inhumane treatment,
terrorising of civilians, destruction of personal property and effects.
- Each count alleges that the Accused “committed” the crimes charged. The
Indictment specifies that the term “committing” includes participation in
a joint criminal enterprise. The Indictment refers to a joint criminal enterprise,
of which the two co-accused, together with other VRS and MUP (Ministry of
the Interior( officers, including the former co-accused Dragan Obrenovic and
Momir Nikolic, allegedly were members, the common purpose of which is defined
as “to forcibly transfer women and children from Srebrenica enclave to Kladanj,
on 12 and 13 July 1995”, and “to capture, detain, summarily execute by firing
squad, bury and rebury thousands of Bosnian Muslim men and boys aged 16 to
60 from the Srebrenica enclave from 12 July 1995 until and about 19 July 1995.”9
While the joint criminal enterprise described in the Indictment refers to
both the forcible transfer and the mass executions, the Trial Chamber observes
that Dragan Jokic, who is presented as a member of this joint criminal enterprise,
is not accused of having participated in the crime of forcible transfer.
- The Indictment alleges that the Accused also incur responsibility under
Article 7(1) of the Statute for having “planned, instigated, ordered and otherwise
aided and abetted in the planning, preparation and execution of the charged
crimes.”10
- Additionally, Vidoje Blagojevic is alleged to bear criminal responsibility
under Article 7(3) of the Statute “if he knew or had reason to know that his
subordinates were about to commit such acts or had done so and he failed to
take the necessary and reasonable measures to prevent such acts or to punish
the perpetrators thereof.”11
- The Prosecution case opened on 14 May 2003 and closed on 27 February 2004.
After the end of the Prosecution case, the Defence for each Accused, within
the time limit fixed by the Trial Chamber, moved for entry of a judgement
of total acquittal pursuant to Rule 98 bis of the Rules of Procedure
and Evidence of the Tribunal (“Rules”).
- On 12 March 2004, the Prosecution filed, under seal, the “Prosecution’s
Consolidated Response to Vidoje Blagojevic’s and Dragan Jokic’s Motions for
Acquittal Pursuant to Rule 98 bis” (“Response”). A redacted, public
version thereof was subsequently filed on 18 March 2004. The Prosecution opposes
all grounds raised in the Motions and requests that the Trial Chamber deny
the relief sought and proceed on all counts in the Indictment.
II. THE APPLICABLE STANDARD OF REVIEW UNDER RULE 98
BIS
- Rule 98 bis (“Motion for Judgement of Acquittal”) of the Rules of
Procedure and Evidence (“Rules”) provides that:
(A) An accused may file a motion for the entry of judgement
of acquittal on one or more offences charged in the indictment within
seven days after the close of the Prosecutor’s case and, in any event,
prior to the presentation of evidence by the defence pursuant to Rule
85(A)(ii).
(B) The Trial Chamber shall order the entry of judgement
of acquittal on motion of an accused or proprio motu if it finds
that the evidence is insufficient to sustain a conviction on that or those
charges.
- All Parties agree that the standard of review under Rule 98 bis is
“ whether a reasonable trier of fact could be satisfied beyond reasonable
doubt that the evidence adduced, if believed, could sustain a finding for
guilt.”12
- In the Jelisic Appeals Judgement,13
the Appeals Chamber interpreted the requirement of Rule 98 bis to mean
that a Trial Chamber must acquit in cases:
“in which, in the opinion of the Trial Chamber, the
prosecution evidence, if believed,14 is insufficient
for any reasonable trier of fact to find that guilt has been proved beyond
reasonable doubt. In this respect, the Appeals Chamber follows its recent
holding in the Delalic appeal judgment, where it said: “[t]he test
applied is whether there is evidence (if accepted ) upon which a reasonable
tribunal of fact could be satisfied beyond reasonable doubt of
the guilt of the accused on the particular charge in question.”15
The capacity of the prosecution evidence (if accepted) to sustain a conviction
beyond a reasonable doubt by a reasonable trier of fact is the key concept;
thus the test is not whether the trier would in fact arrive at a conviction
beyond reasonable doubt on the prosecution evidence (if accepted) but
whether it could. At the close of the case for the prosecution, the Chamber
may find that the prosecution evidence is sufficient to sustain a conviction
beyond reasonable doubt and yet, even if no defence evidence is subsequently
adduced, proceed to acquit at the end of the trial, if in its own view
of the evidence, the prosecution has not in fact proved guilt beyond a
reasonable doubt.”
- Counsel for Dragan Jokic asserts that the application of such test should
lead the Trial Chamber to reject evidence “which is suspect, contradictory,
contrived or in any manner compromised”16 and
that, when two reasonable inferences may be drawn from credible evidence,
namely one of guilt and one of innocence, the latter must be adopted.17
It should adopt the interpretation that is most favourable to the Accused.
It furthermore asserts that “the failure to produce evidence necessary to
establish any element within the Indictment creates an inference in favour
of the accused and against the [Prosecution].”18
Dragan Jokic concludes that “the evidence must be sufficiently compelling
to fall into the category of ‘evidence on which a reasonable Trial Chamber
could convict’.”19
- The Trial Chamber notes that several of the arguments raised by the Defence
for both Accused would require the Trial Chamber to assess the reliability
and credibility of witnesses. The question of whether reliability and credibility
of witnesses should be considered in motions for acquittal is closely linked
with the determination of the applicable standard for acquittal under Rule
98 bis. In deciding that the standard is whether a reasonable tribunal
of fact could, on the basis of the evidence presented by the Prosecution,
convict the Accused, the Trial Chamber, consistent with the jurisprudence
of the Tribunal on this issue, will not evaluate the weight to be given to
evidence, even when presented by a party as “suspect”, “contradictory ” or
in any other way unreliable. Evidence will be disregarded only when the Trial
Chamber considers it so manifestly unreliable or incredible that no reasonable
tribunal of fact could credit it. In other words, in examining the claims
that follow, the Trial Chamber will not assess the credibility and reliability
of witnesses unless the Prosecution case can be said to have “completely broken
down,”20 in that no trier of fact could accept
the evidence relied upon by the Prosecution to maintain its case on a particular
issue.21
- The Trial Chamber also observes that it may, in line with prior decisions,
enter a judgement of acquittal with regard to a factual incident, a particular
form of liability or an event cited in the Indictment in support of a count,
if the Prosecution’s evidence on that particular incident does not rise to
the level of the standard laid down in Rule 98 bis.22
III. THE SUBSTANCE OF THE MOTIONS FOR ACQUITTAL
- Both Accused seek the entry of a judgement of total acquittal on the ground
that the Prosecution has not proved their participation in the crimes charged
in the Indictment. The Motions hence mainly touch upon Article 7 of the Statute
and the Trial Chamber therefore briefly sets out the legal requirements under
Article 7 before considering each Motion.
A. The law on Article 7 of the Statute
- Article 7(1) of the Statute provides that:
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.
- “Planning” means that one or more persons design the commission of a crime
at both the preparatory and execution phases.23
- “Instigating” means prompting another to commit an offence.24
- “Ordering” entails a person in a position of authority using that position
to command another to commit an offence.25
- Planning, instigating and ordering require that the accused has criminal
intent, either direct or indirect.26
- “Committing” supposes that the accused carries out, physically or otherwise
directly, the actus reus of the crime.27
This can be achieved individually or jointly with others. Co-perpetration
and the theory of joint criminal enterprise are modes of joint commission
that have been recognised in the Tribunal’s jurisprudence.28
The Stakic Trial Judgement has defined commission as follows: “the
accused participated, physically or otherwise directly or indirectly,29
in the material elements of the crime charged through positive acts or, based
on a duty to act, omissions, whether individually or jointly with others.
The accused himself need not have participated in all aspects of the alleged
criminal conduct.”30 Joint criminal enterprise
is defined by three objective elements: first, there must be a plurality of
persons ; second, a common plan, design or purpose must exist, which amounts
to or involves the commission of a crime provided in the Statute; and third,
the accused must have participated in the common design.31
This participation need not involve the commission of a specific crime but
may take the form of assistance in, or contribution to, the execution of the
common plan or purpose.32 The Appeals Chamber
has distinguished three categories of joint criminal enterprise on the basis
of the mens rea required. In the first category, all perpetrators share
the same criminal intention; the accused must voluntarily participate in at
least one aspect of the common design and, even if not personally effecting
the crime(s), must nevertheless intend the result. The second category refers
to the so-called “concentration camp” cases and is not applicable to this
case. Under the third category, a member of a joint criminal enterprise is
held responsible for the criminal acts committed by other such members when
these criminal acts, while falling outside the scope of the common design,
were natural and foreseeable consequences of effecting the common design.33
- “Aiding and abetting” means rendering a substantial contribution to the
commission of a crime.34 The aider and abettor
must have knowledge that his acts assist the commission of the crime.35
- Article 7(3) of the Statute provides that:
The fact that any of the acts referred to in articles
2 to 5 of the present Statute was committed by a subordinate does not
relieve his superior of criminal responsibility if he knew or had reason
to know that the subordinate was about to commit such acts or had done
so and the superior failed to take the necessary and reasonable measures
to prevent such acts or to punish the perpetrators thereof.
- The jurisprudence has specified that an accused is held responsible under
Article 7(3) if:
- there is a superior-subordinate relationship between the perpetrator(s)
and the accused;
- the accused knew or had reasons to know that a crime was about to be
or had been committed;
- the accused failed to take the necessary and reasonable measures to
prevent the commission of the crime or punish the perpetrator(s) thereof.36
B. Vidoje Blagojevic’s Motion
1. Vidoje Blagojevic’s alleged involvement in the
commission of crimes
(a) Involvement in, and knowledge of criminal
activities
- The Defence submits that there is no evidence that Vidoje Blagojevic participated
in criminal activities: he was not present at any location where crimes were
committed, nor is there any evidence to suggest that he provided assistance
to criminal activity.37 On the contrary, the
Defence claims that the evidence shows that Vidoje Blagojevic was never contacted
to provide assistance in relation to criminal activity38
and only carried out lawful military orders that were consistent with the
VRS rules and regulations.39
- Further, the Defence submits that no evidence has been presented in relation
to conversations between Blagojevic and other members of the alleged joint
criminal enterprise.40 Also, no reliable evidence
has been adduced regarding the participation of the Accused in meetings where
criminal activity was discussed.41 In particular,
the Defence contests that criminal activity was discussed during the meeting
of 16 October 1995 attended by Blagojevic. It first argues that the evidence
is not clear enough to accept that the reference to “asanacija”, made during
this meeting, did refer to the reburial operation.42
Second, even assuming that “asanacija” was used in reference to the reburial
operation, it contests that this was indeed discussed at the meeting.43
- The Prosecution responds that documentary evidence implicates Blagojevic
directly, such as the intercept of a conversation between General Radislav
Krstic, the Drina Corps commander, and Colonel Ljubisa Beara of the Main Staff,
or the minutes of the meeting of 16 October 1995.44
The Prosecution also claims that there is substantial circumstantial evidence
indicating that Blagojevic had knowledge of the crimes such as the large scale
and organisation of the executions.45 Evidence
would also indicate that Vidoje Blagojevic, as commander of the Bratunac Brigade,
was in the Bratunac Brigade zone of responsibility during this time.46
The Prosecution concludes that Blagojevic was necessarily involved in criminal
activity.47
- The Prosecution further submits that the evidence shows that members of
the Bratunac Brigade were involved in the guarding, loading on trucks and
escorting of thousands of Bosnian Muslims from Potocari on 12 and 13 July
1995,48 as well as in key aspects of the murder
operation, including the separation, detention, murder, burial and reburial
of Bosnian Muslim men.49
- The Prosecution adds that Vidoje Blagojevic was fully aware of the intention
of the Republika Srpska and the VRS to expel the Bosnian Muslim population
from the territory of eastern Bosnia, as this intention was consistently expressed
well before July 1995.50 Among others, the Prosecution
points to several documents including the attack plan authored by Blagojevic
on 5 July 1995,51 the Accused’s position as a
senior commander since the beginning of the war in 1992,52
his involvement in the establishment of a checkpoint restricting humanitarian
aid,53 and his involvement in artillery operations
where civilians were targeted.54
- The Trial Chamber finds that evidence has been presented by the Prosecution,
which, if accepted, could lead a reasonable trier of fact to conclude beyond
reasonable doubt that troops and resources of the Bratunac Brigade were involved
in the commission of certain crimes.55 The Trial
Chamber also finds that sufficient evidence has been adduced for a reasonable
trier of fact to conclude that Vidoje Blagojevic was aware of crimes committed
in the Bratunac area, including by troops belonging to the Bratunac Brigade.
There is therefore evidence, which, if accepted, could lead a reasonable trier
of fact to conclude that Vidoje Blagojevic was informed of the criminal activities
carried out by and the whereabouts of his subordinates.
(b) Control over troops involved in criminal activities
- The Defence concedes that Vidoje Blagojevic was the commander of the Bratunac
Brigade and was in a position of authority within the Brigade.56
However, it claims that there is no evidence which would indicate that Vidoje
Blagojevic ordered,57 or knew or had reason to
know, that his subordinates committed or were about to commit the crimes alleged
in the Indictment.58 The Defence adds that, even
assuming that Vidoje Blagojevic knew of the crimes committed by his subordinates,
there is insufficient evidence to establish that he could have taken reasonable
measures to punish the perpetrators.59
- The Defence claims that evidence has shown that, under the military rules
applicable at that time, “a functional relationship exist(ed( between the
higher and lower echelon officers within the same organ”. This functional
relationship allowed a higher echelon officer of a particular organ to issue
orders to a lower echelon officer of the same organ without passing through
the brigade commander, who merely had to be kept informed.60
Regarding the Bratunac Brigade intelligence and security organ in particular,
the Defence submits that Blagojevic did not have control over the Bratunac
Brigade Military Police, which was placed under Momir Nikolic, the Chief of
Intelligence and Security. Further, the notion of “counter-intelligence” was
expanded by the Instructions issued by the VRS Main Staff commander General
Ratko Mladic in October 1994, which, according to the Defence, most probably
emboldened members of the security organs to operate independently of their
commanders.61 Under this separate chain of command,
orders were received by the Bratunac Brigade Military Police directly from
higher echelon officers. The Defence adds that the evidence adduced confirms
that Nikolic in fact did not follow the functional relationship as per the
VRS rules, and admitted to having received orders directly from the superior
intelligence and security organ, without informing Blagojevic.62
The Defence submits that the testimony of Momir Nikolic is unreliable and
untruthful and contrasts his testimony with that of five other witnesses in
support of this claim.63
- Finally, the Defence submits that there is no evidence on the basis of
which Blagojevic could be held responsible for activities carried out by the
Main Staff or the Drina Corps while using the Bratunac Brigade Headquarters
as the forward command post, or for activities of the civilian authorities,
including the MUP.64
- Conversely, the Prosecution submits that, in light of the chain of command,
Vidoje Blagojevic must have been informed of and was involved in the criminal
activities conducted by security officers and personnel, and other soldiers.65
The Prosecution also points to evidence indicating that Nikolic informed Blagojevic
of the fate of the Bosnian Muslim prisoners at Bratunac, when they met on
12 July 1995.66
- The Trial Chamber finds that a reasonable trier of fact could conclude
that the Prosecution has provided sufficient evidence of the Accused's de
jure authority as the Bratunac Brigade Commander, and of his effective
control over the brigade troops. The Trial Chamber recalls that it will assess
the weight and reliability to be attributed to the evidence, including in
particular Momir Nikolic's testimony, at a later stage.
2. Vidoje Blagojevic’s responsibility for the crimes
of extermination and murder
- The Defence does not contest the fact that “following the attack on Srebrenica,
certain members of the VRS and MUP forces captured, detained, summarily executed
and buried thousands of Bosnian Muslim men.”67
The Trial Chamber finds that the Prosecution has adduced sufficient evidence
for a reasonable trier of fact to conclude beyond reasonable doubt that murder,
as a crime against humanity and as a violation of the laws or customs of war,
and extermination as a crime against humanity, were committed during the indictment
period. The Trial Chamber however analyses ex officio those aspects
of the crimes referring to the “opportunistic killings” before considering
the alleged responsibility of the Accused for these crimes.
(a) Opportunistic killings (paragraphs 43, 45,
47-48 of the Indictment)
- The Trial Chamber understands that the crimes of murder and extermination
also refer to the factual allegations of “opportunistic killings” contained
in the Indictment.
- The Indictment contains three sections dealing with “opportunistic killings
”:
a) Paragraph 43 concerns killings in Potocari on 12-13 July 1995,
b) Paragraph 45 concerns killings in Bratunac “between 12 and about 15
July 1995”, and
c) Paragraphs 47-48 concern “opportunistic killings in the Bratunac Brigade
and Zvornik Brigade zones” in the period “during and after the campaign
of organised executions …through about 1 November 1995”.
- The Trial Chamber notes that the Indictment alleges all three sets of opportunistic
killings for both Accused. The Trial Chamber is of the opinion that the Prosecution
has led evidence which, if believed, could lead a reasonable trier of fact
to conclude that the following opportunistic killings occurred as described
in the Indictment : paragraph 43 a), b), c), and d); paragraph 45 a), c),
d) and f), paragraph 47. 1, 47.3, 47.4, and 47.6, and paragraph 48.
- The factual allegation described in paragraph 45 b) is however not supported
by the evidence adduced at trial by the Prosecution. From the testimony of
Kemal Mehmedovic, it transpires that two men were removed from the truck on
which the witness was held in the morning of 14 July 1995. While the discrepancy
with paragraph 45 b) regarding the date of the event on its own is not serious
enough to conclude that the factual allegation is incorrect, the Trial Chamber
notes that the witness testified that “[t]hey were taken away, but nothing
was heard afterwards, no bursts of fire or shots or anything. What happened
to them, I have no idea.”68 The Trial Chamber
has not found any other evidence to support the factual allegation and therefore
concludes that a reasonable trier of fact could not determine that this factual
allegation occurred on the basis of the evidence presented.
- As regards the factual allegation in paragraph 45 e), the Trial Chamber
has not been furnished with any evidence by the Prosecution that four young
Bosnian Muslim men were taken from the area of the Vuk Karadzic old elementary
school and summarily executed. The Trial Chamber therefore concludes that
a reasonable trier of fact, on the basis of the evidence adduced, could not
conclude that this factual allegation occurred.
- Paragraph 47.2 of the Indictment alleges that, sometime between 13 July
through 27 July 1995, two Bosnian Muslim men were captured by VRS and/or MUP
soldiers and that these two men were later placed in a pit near Konjevic Polje
where they were executed. The Trial Chamber has not found any evidence to
support this factual allegation and concludes that a reasonable trier of fact
could not find that it occurred as described.
- Paragraph 47.5 of the Indictment alleges that six named Bosnian Muslim
men were captured by MUP forces sometime between 12 July and 1 November 1995
and turned over to and interrogated by Bratunac Brigade personnel, who subsequently
executed them. Witness P-134 testified how Momir Nikolic on 13 July 1995 removed
two men from a road checkpoint near Konjevic Polje. Momir Nikolic himself
admitted that he only removed one Bosnian Muslim man, named Resid Sinanovic,
from the checkpoint.69 Momir Nikolic also testified
that he had heard from people he spoke with that Resid Sinanovic had later
been transferred to the Vuk Karadzic School and then “to Zvornik” where he
was killed.70 Apart from the testimonies of witness
P-134 and Momir Nikolic, the Prosecution has not provided any testimonial
evidence regarding this factual allegation. The Trial Chamber therefore finds
that a reasonable trier of fact could conclude on the evidence that the factual
allegation in paragraph 47.5 occurred as regards Resid Sinanovic but not as
regards the five other named individuals. Consequently, the factual allegation
in paragraph 47.5 is retained only in so far as it refers to Resid Sinanovic.
- The Prosecution has not furnished the Trial Chamber with any evidence supporting
the factual allegations in paragraphs 47.7 and 47.8. The Trial Chamber therefore
concludes that a reasonable trier of fact could not conclude on the evidence
presented that these allegations occurred as described.
(b) Vidoje Blagojevic’s alleged responsibility
under Article 7 of the Statute
- The Trial Chamber deems that there is insufficient evidence for a reasonable
trier of fact to find Vidoje Blagojevic responsible for planning, instigating
or ordering the crimes of extermination and murder charged in Counts 2-4.
- The Trial Chamber finds, however, that there is evidence that could
lead a reasonable trier of fact to conclude that the mass murder of Bosnian
Muslim men was part of an organised and well executed operation. However,
evidence that would prove the Accused’s membership of the joint criminal enterprise
to execute thousands of Bosnian Muslim men is scarce. The Prosecution has
adduced very little evidence of direct contact between the Accused and other
alleged members of the joint criminal enterprise.71
Much of the evidence centers on the involvement of troops from the Bratunac
Brigade in the attack on Srebrenica and in activity following the fall of
Srebrenica, such as guarding detained Bosnian Muslim men. The Prosecution
argues that this evidence, together with Blagojevic’s position in the VRS
and his participation in military actions leading up to the fall of Srebrenica,
is sufficient to prove that he shared the intent to murder the Bosnian Muslim
men. The Trial Chamber does not agree with this proposition. Evidence that
Bratunac Brigade members participated in the attack on Srebrenica and in criminal
activities following the fall of Srebrenica, some of which could be considered
as furthering the joint criminal enterprise, is, in and of itself, not sufficient
for a reasonable trier of fact to conclude that Blagojevic shared the intent
of such a joint criminal enterprise. Likewise, evidence that Blagojevic was
present in the Bratunac Brigade zone of responsibility during the relevant
time is not deemed sufficient for a reasonable trier of fact to find that
Blagojevic intended the results of the joint criminal enterprise. This conclusion
is furthermore supported by evidence that the superior commands of the Bratunac
Brigade, the Main Staff of the VRS and the Drina Corps, had forward command
posts co-located with the Bratunac Brigade command, and also by evidence that
there appears to have been occasions when superior echelons bypassed the chain
of command and issued orders to Bratunac Brigade resources without the brigade
commander's authorisation.72 Thus, the Trial
Chamber does not consider that proof of participation in criminal activity
of Bratunac Brigade troops is sufficient for a reasonable trier of fact to
conclude that Blagojevic was a member of the joint criminal enterprise to
execute Bosnian Muslim men. While there is evidence which could lead a reasonable
trier of fact to conclude that the Accused had knowledge of the murder operation,73
this evidence is not deemed sufficient to allow a reasonable trier of fact
to conclude that the Accused as a consequence participated in the joint criminal
enterprise to execute Bosnian Muslim men.
- The Trial Chamber finds that there is sufficient evidence which, if accepted,
could lead a reasonable trier of fact to find that the Accused knowingly provided
assistance in the commission of the crimes. As a result, a reasonable trier
of fact could conclude beyond reasonable doubt that the Accused is responsible
for the crimes of murder and extermination as an aider and abettor.
- The reburial operation is presented in the Indictment as a “natural and
foreseeable consequence of the execution and original burial plan conceived
by the joint criminal enterprise”74 of which
Blagojevic and Jokic were allegedly members. The Appeals Chamber has specified
in this respect that a crime would be considered a natural and foreseeable
consequence of a joint criminal enterprise if “everyone in the group must
have been able to predict this result”. The Appeals Chamber added: “what is
required is a state of mind in which a person, although he did not intend
to bring about a certain result, was aware that the actions of the group were
most likely to lead to that result but nevertheless willingly took that risk.
In other words, the so-called dolus eventualis is required (also called
“advertent recklessness” in some national legal systems ).”75
- The Trial Chamber finds that no reasonable trier of fact could reach the
conclusion that the reburial operation, conducted a few months after the executions,
was foreseeable at the time the executions were carried out. No evidence has
been presented which would allow the conclusion that the reburial operation
was a predictable result of the joint criminal entreprise. On the contrary,
the evidence would rather indicate that this operation was decided in response
to the scrutiny of the international community of the events following the
take-over of Srebrenica, i.e. as a consequence of a fact that falls
outside the scope of the joint criminal enterprise. As a result, the Trial
Chamber finds that the efforts to conceal the crimes a few months after their
commission could only be characterised by a reasonable trier of fact as ex
post facto aiding and abetting in the planning, preparation or execution
of the murder operation.
- The “opportunistic killings” are presented in the Indictment as a natural
and foreseeable consequence of the common design.76
However, as previously stated, the Trial Chamber finds that no reasonable
trier of fact could find that Blagojevic was a member of the joint criminal
enterprise described in the Indictment with regard to the crimes of extermination
and murder. Regarding his possible responsibility for the opportunistic killings,
the Trial Chamber has found that the evidence adduced, if believed, could
lead a reasonable trier of fact to find the accused guilty under Article 7(3)
of the Statute for the opportunistic killings found in paragraph 45 a), c),
d) and f).77 However, with regard to the opportunistic
killings in paragraph 43 a) to d), paragraph 47.1, 47.3, 47.4, and 47.6, and
paragraph 48 of the Indictment, the evidence does not provide any specific
information as to which VRS or MUP forces committed the killings. The evidence
that these killings were committed within the Bratunac Brigade zone of responsibility
is, in the Trial Chamber’s opinion, not sufficient to lead to the conclusion
that a reasonable trier of fact could find the Accused responsible under Article
7(3) of the Statute for these killings. Thus, with regard to Vidoje Blagojevic,
all factual allegations of opportunistic killings, except those contained
in paragraph 45 a), c), d) and f), are dismissed.
- The Trial Chamber finds that the Prosecution has adduced sufficient evidence
for a reasonable trier of fact to conclude beyond a reasonable doubt that
the Accused could incur individual criminal responsibility under Article 7(3)
of the Statute for the crimes of murder and extermination in Counts 2-4.
3. Blagojevic’s alleged responsibility for the
crime of forcible transfer
- While contesting the issue of forcible transfer, the Defence has deferred
addressing this until the end of the presentation of evidence.78
The Trial Chamber finds that the Prosecution has adduced evidence which, if
accepted, could lead a reasonable trier of fact to conclude beyond reasonable
doubt that forcible transfer as a crime against humanity (Count 6) was committed
during the indictment period.
- The Trial Chamber finds that there is insufficient evidence for a reasonable
trier of fact to find Vidoje Blagojevic responsible for planning, instigating
or ordering the crime of forcible transfer.
- The Trial Chamber finds, however, that there is evidence that could lead
a reasonable trier of fact to conclude that the forcible transfer of Bosnian
Muslim refugees was part of an organised and well executed operation. The
Trial Chamber also finds that a reasonable trier of fact could infer that
Blagojevic provided assistance to other members of the joint criminal enterprise
in the execution of its common purpose. There is also evidence which could
lead a reasonable trier of fact to conclude that the leaders of the Republika
Srpska and the VRS intended to expel the Bosnian Muslim population from Srebrenica
since well before July 1995.79 This evidence,
together with the evidence provided with respect to Blagojevic’s senior position
in the VRS, his command position during the indictment period, his awareness
of the evacuation,80 and the participation of
his subordinates in criminal activities, is sufficient to enable a reasonable
trier of fact to conclude that Blagojevic intended the result of the joint
criminal enterprise, insofar as this enterprise concerns the forcible transfer
of the Bosnian Muslim population.
- Finally, the Trial Chamber finds that there is sufficient evidence for
a reasonable trier of fact to conclude that the Accused knowingly provided
assistance to the commission of the crime such that he could incur criminal
responsibility for aiding and abetting in its planning, preparation or execution.
Moreover, the Trial Chamber finds that the Prosecution has adduced sufficient
evidence for a reasonable trier of fact to find the Accused guilty under Article
7(3) for the crime of forcible transfer.
4. Vidoje Blagojevic’s alleged responsibility for
the crime of persecutions
- The Defence admits that “there is significant evidence that would establish
the existence of certain crimes under Article 5(h) of the Statute.”81
The Trial Chamber finds that the Prosecution has presented evidence which
could lead a reasonable trier of fact to conclude that the crime of persecutions
was committed during the indictment period.
- The Trial Chamber finds that, upon the evidence adduced, a reasonable trier
of fact could not conclude that the Accused is guilty of planning, ordering
or instigating the crime of persecutions. The Trial Chamber however finds
that a reasonable trier of fact could hold the Accused responsible for committing
the crime of persecution, on the basis, among others, of his involvement in
the evacuation of the Bosnian Muslim population. The Trial Chamber also finds
that there is sufficient evidence for a reasonable trier of fact to conclude
that the Accused knowingly provided assistance to the commission of the crime,
and as a result could find him guilty as an aider and abettor. Finally, the
Trial Chamber finds that the Prosecution has adduced sufficient evidence for
a reasonable trier of fact to find the Accused guilty for the crime of persecutions
under Article 7(3).
5. Vidoje Blagojevic’s alleged responsibility for
the crime of complicity in genocide
- While contesting the issue of genocide, the Defence defers addressing this
until the close of the evidence.82 The Trial
Chamber finds that the Prosecution has adduced evidence which, if accepted,
could lead a reasonable trier of fact to come to the conclusion that genocide
was committed in Srebrenica during the indictment period. The Trial Chamber
also finds that a reasonable trier of fact could find Blagojevic responsible
for complicity in genocide on the basis of the evidence presented.
C. Dragan Jokic’s Motion
1. The crimes with which Dragan Jokic has been
charged
- The Trial Chamber refers to its previous findings that sufficient evidence
has been presented for a reasonable trier of fact to find that the crimes
of extermination, murder and persecutions were committed during the indictment
period.83
- The Defence for Dragan Jokic claims that Counts 3 and 4, which respectively
charge murder as a crime against humanity and as a violation of the laws or
customs of war, should be dismissed. To support this claim, the Defence argues
that “joining […] two or more separate and distinct offences into a single
count” is “universally condemned in jurisprudence”84
and that cumulative charging of one single offence under several counts violates
the Accused’s “basic right against double jeopardy.”85
- The Trial Chamber first notes that these arguments refer to the form of
the Indictment, rather than to an alleged lack of evidence to enter a conviction.
Under Rule 72 of the Rules, objections regarding the form of the Indictment
are to be presented at the pre-trial stage and no later than thirty days after
disclosure by the Prosecution to the Defence of all material and statements
referred to in Rule 66(A)(i).86 The arguments
presented in this respect could therefore be rejected on the mere ground that
they are not submitted in time. However, on the merits, the Trial Chamber
notes that cumulative charging is authorised in the Tribunal’s jurisprudence
and that it even constitutes the common practice of both this Tribunal and
the ICTR.87 Moreover, no rule prevents the Prosecution
from charging several criminal acts under one single count. These objections
therefore fail.
- The Defence also points to an inconsistency in the Indictment in that according
to paragraph 31 of the Indictment, Dragan Jokic is alleged to have “committed,
planned, instigated, ordered, and otherwise aided and abetted genocide or
complicity in genocide, crimes against humanity (including murder, persecutions,
forcible transfer and inhumane acts) and murder as a violation of the laws
or customs of war”. The Defence argues that this is in contradiction both
with the preamble and paragraph 54 of the Indictment, which clearly indicate
that Dragan Jokic is neither charged with genocide or complicity in genocide,
nor with forcible transfer.88 It is also the
understanding of the Trial Chamber that Dragan Jokic is not charged with these
crimes.
- The Defence also submits that the Prosecution has failed to produce evidence,
on the one hand, of opportunistic killings in the Zvornik Brigade zone and,
on the other hand, of Dragan Jokic’s involvement in such killings.89
It appears that the Defence is of the opinion that the Indictment only alleges
responsibility of Jokic for the opportunistic killings that occurred in the
Zvornik Brigade zone. As has been noted above, the Trial Chamber does not
agree with this position and will consequently examine whether a reasonable
trier of fact could convict Dragan Jokic on the basis of the evidence adduced,
if believed, for all opportunistic killings. The Trial Chamber refers in this
respect to its earlier findings regarding which of the opportunistic killings
remain for consideration.90
2. Dragan Jokic’s role, as chief of engineering
of the Zvornik Brigade, in the burial and reburial operations
- The Defence argues that the Prosecution failed to prove that Dragan Jokic
was “responsible for planning, directing, organising and monitoring the activities
of the Zvornik Brigade Engineering Company” or “empowered to issue orders
to the Engineering Company”, as is alleged under paragraph 13 of the Indictment.
On the contrary, the Defence claims that the evidence demonstrates that the
Accused had no command authority over the Zvornik Brigade Engineering Company.91
The Defence further argues that the evidence adduced by the Prosecution is
insufficient to prove the participation of Dragan Jokic or the Zvornik Brigade
Engineering Company in the burial operations conducted between 14 and 17 July
1995 in connection with the killings at the Kravica Warehouse,92
Orahovac,93 Petkovci Dam,94
the Branjevo military Farm and the Pilica Cultural Centre,95
or Kozluk.96 Moreover, the Defence submits that
there is no evidence indicating that Dragan Jokic in any manner directed the
Zvornik Brigade Engineering Company with regard to the reburial operation.97
On the contrary, the Prosecution’s witnesses confirmed that Dragan Jokic did
not participate in this operation.98
- The Prosecution responds that it does not allege that Dragan Jokic was
the commander of the Zvornik Brigade Engineering Company or that it is relying
on a theory of command responsibility when pleading Jokic’s responsibility
for the crimes charged.99 Furthermore, while
the Prosecution argues that, “in the practical exercise of engineering duties,
Dragan Jokic had more authority than called for in the rules”, it emphasises
that “it has never been the Prosecution’s position that Dragan Jokic was the
‘de facto’ commander of the Engineering Company in July 95”.100
The Prosecution specifies that this consideration would only be presented
as an aggravating circumstance to be taken into account while determining
an appropriate sentence.101 The Prosecution
however maintains that there is evidence showing that:
- Dragan Jokic, as the chief of engineering, was tasked, under the rules,
to “advise the Brigade Commander on the appropriate uses for the Engineering
Company and make proposals and recommendations for various projects for
the Engineering Company,”102 and to “oversee
and assist in implementing the Commander’s orders related to carrying out
various projects in which the Engineering Company is engaged;”103
- The Zvornik Brigade Engineering Company was involved in the burial and
reburial operations;104 and
- Dragan Jokic was personally involved in the burial105
and reburial operations.106
- The Trial Chamber finds that a reasonable trier of fact could conclude
that the evidence presented is sufficient to find that Dragan Jokic and the
Zvornik Brigade Engineering Company were involved in the burial and re-burial
operations.
3. Dragan Jokic’s role, as brigade duty operations
officer on 14 and 15 July 1995, in co-ordinating communication between
VRS officers and commands involving the transportation, detention, execution
and burial of Srebrenica Bosnian Muslims
- The Defence does not contest that Dragan Jokic was the Zvornik Brigade
duty operations officer on 14 and 15 July 1995. It argues, however, that the
Prosecution failed to prove the other allegations contained in paragraph 14
of the Indictment and that the evidence does not allow a reasonable trier
of fact to conclude that Jokic was “the central point of co-ordination and
communications for the Zvornik Brigade zone of responsibility.”107
In the Defence’s opinion the evidence shows that other commanding officers
were always present at the Zvornik Brigade command when Jokic was the duty
operations officer.108 In the Defence’s view,
such evidence could only lead to the conclusion that Jokic did not exercise
any role in co-ordinating communications between VRS officers and commands
involved in the transportation, detention, execution and burial of Bosnian
Muslims from Srebrenica.109 The Defence adds
that this inference is confirmed by the absence of any direct evidence establishing
that Jokic was the central point of co-ordination of the brigade on 14 and
15 July 1995.110 It avers that no evidence shows
that Dragan Jokic ever authored or transmitted any report of the Zvornik Brigade.111
- According to the Prosecution, the evidence adduced proves that Dragan
Jokic was aware of the plan to murder the Bosnian Muslims in the Zvornik Brigade
zone and assisted in carrying out that operation.112
In particular, the Prosecution submits that Jokic’s central role in co-ordinating
communications between VRS officers and commands on 14 and 15 July is proved
by evidence describing the tasks generally attributed to the duty operations
officer,113 evidence showing that Jokic issued
orders on 14 and 15 July,114 intercepted conversations
involving Dragan Jokic,115 the entries written
by Dragan Jokic into the Duty Operations Officer Workbook,116
and the testimony of Zvornik Brigade members who communicated with Dragan
Jokic on 14 July 1995.117
- The Trial Chamber finds that a reasonable trier of fact, on the basis of
the evidence adduced, could conclude that Dragan Jokic, as the brigade duty
operations officer on 14 and 15 July 1995, played a significant role in co-ordinating
communication between VRS officers and commands involving the transportation,
detention, execution and burial of Bosnian Muslims and was aware that the
crimes were being committed.
4. Dragan Jokic’s alleged responsibility for the
crimes of murder, extermination and persecutions
(a) Planning, instigating, and ordering
- The Trial Chamber is of the opinion that the Prosecution has not led such
evidence on the above three heads of responsibility that a reasonable trier
of fact could conclude that Dragan Jokic planned, instigated or ordered any
of the alleged crimes. While there is evidence that may lead a reasonable
trier of fact to find that Jokic ordered certain actions that contributed
to the commission of the crimes charged, no reasonable trier of fact could
reach a finding beyond reasonable doubt that he ordered the crimes of murder,
extermination or persecutions per se. The Trial Chamber consequently
removes these three heads of responsibility for all crimes with which Dragan
Jokic has been charged.
(b) Committing as a member of a joint criminal
enterprise
- The Defence submits that Jokic was not a member of the joint criminal enterprise
and that he did not know what individuals outside Zvornik had planned. Moreover,
it is alleged that he was not in the Zvornik Brigade command on 12 and 13
July 1995 but that he only arrived there on 14 July in order to assume duty
as the duty operations officer.118 Furthermore,
no personnel from the Zvornik Brigade Engineering Company had any knowledge
of the development in Srebrenica and Bratunac, nor did they possess any plan
of utilization of engineering assets.119 It
is also contended that Dragan Jokic left the Zvornik Brigade premises in the
morning of 15 July 1995.120
- The Defence argues that the Prosecution has failed to prove that Dragan
Jokic possessed the criminal intent and state of mind required to commit,
or significantly assist and facilitate the commission of, the alleged crimes.121
- The Prosecution refers to the evidence set out in its Response which in
its opinion proves Jokic’s agreement and/or silent consent to the common goal
of the joint criminal enterprise and his level of co-ordination and co-operation.122
- The Trial Chamber has previously assessed Dragan Jokic’s significant role
as duty operations officer co-ordinating communications in relation to the
transportation, detention, execution and burial of Bosnian Muslims. The Trial
Chamber has also analysed Jokic’s participation in the burial operation as
both the Zvornik Brigade chief of engineering, as well as duty operations
officer during a crucial time period.123 The
Trial Chamber therefore believes that a reasonable trier of fact could conclude
that Dragan Jokic was aware of, and shared, the common design of the joint
criminal enterprise as described in the Indictment. A reasonable trier of
fact could consequently also conclude that Dragan Jokic was a member of this
joint criminal enterprise, and that he participated in the execution and furthering
of its common design with the mental state required for the crimes charged
in Counts 2-5 of the Indictment. The Trial Chamber is therefore also convinced
that a reasonable trier of fact could find Dragan Jokic guilty of the opportunistic
killings that remain for consideration, i.e. paragraph 43 a), b), c),
and d); paragraph 45 a), c), d) and f), paragraph 47.1, 47.3, 47. 4, and 47.6.
(c) Aiding and Abetting in the planning, preparation
or execution of the crimes
- The Trial Chamber finds that there is sufficient evidence which, if accepted,
could lead a reasonable trier of fact to find that Dragan Jokic knowingly
provided assistance in the commission of the crimes he is charged with and
that he could incur individual criminal responsibility as an aider and abettor
under Article 7 (1) of the Statute.
IV. DISPOSITION
FOR THE FOREGOING REASONS,
TRIAL CHAMBER I, SECTION A
PURSUANT TO Rule 98 bis of the Rules,
ENTERS a judgement of acquittal in respect of Vidoje Blagojevic
on Counts 2 to 4 of the Indictment insofar as his individual criminal responsibility
is alleged, under Article 7(1) of the Statute, for planning, instigating,
ordering and committing the crimes;
ENTERS a judgement of acquittal in respect of Vidoje Blagojevic
on Counts 5 and 6 of the Indictment insofar as his individual criminal responsibility
is alleged, under Article 7(1) of the Statute, for planning, instigating,
and ordering the crimes;
ENTERS a judgement of acquittal in respect of Dragan Jokic on Counts
2 to 5 of the Indictment insofar as his individual criminal responsibility
is alleged, under Article 7(1) of the Statute, for planning, instigating,
and ordering the crimes;
REJECTS the factual allegations contained in paragraphs 45 b) and
e), 47. 2, 47.5 except for the victim named Resid Sinanovic, 47.7, and 47.8;
and
REJECTS, with regard to Vidoje Blagojevic, the factual allegations
contained in paragraphs 43 a) to d), 47.1, 47.3, 47.4, 47.6, and 48;
DISMISSES the remaining grounds of the Motions.
Done in English and French, the English version being authoritative.
______________
Judge Liu Daqun,
Presiding
______________
Judge Volodymyr Vassylenko
______________
Judge Carmen Argibay
Dated this fifth day of April 2004
at The Hague, Netherlands
[Seal of the Tribunal]
1 - “Defendant Dragan Jokic’s Motion for Acquittal
Pursuant to Rule 98 bis,” 2 March 2004; “Vidoje Blagojevic’s Motion for
Judgement of Acquittal Pursuant to Rule 98 bis”, 2 March 2004.
2 - Indictment, para. 30.
3 - Indictment, para. 51.
4 - Following the guilty plea of Momir Nikolic and the filing
of a new indictment, the Indictment does not contain a Count 1A, as this count
(genocide) was limited to Momir Nikolic.
5 - Indictment, para. 12.
6 - Indictment, para. 14.
7 - Indictment, para. 36.
8 - Indictment, para. 51.
9 - Indictment, para. 30.
10 - Indictment, para. 27.
11 - Indictment, para. 28.
12 - Blagojevic Motion, para. 8; see also Jokic Motion, para.
3, which states the standard of review as follows: “whether there is evidence
on which a reasonable… trier of fact could be satisfied beyond reasonable doubt
of the guilt of the accused.” Response, para. 10.
13 - Prosecutor v. Goran Jelisic, Case No. IT-95-10-A,
Judgement, 5 July 2001 (“Jelisic Appeal Judgement”), para. 37.
14 - Footnote in the original judgement: “As to the permissibility
of drawing inferences at the close of the case for the prosecution, see Monteleone
v. the Queen [1987] 2 S.C.R. 154 in which McIntyre J., for the court, said:
‘It is not for the trial judge to draw inferences of fact from the evidence before
him’. And see the reference to ‘inferences’ in Her Majesty v. Al Megrahi and
Another, infra. See the Kvocka decision, para. 12, p. 5, in
which the Trial Chamber said: ‘The Chamber prefers an objective standard, under
which it is entitled at this stage to apply any reasonable inferences and presumption
or legal theories when reviewing the Prosecution evidence.’ The issue posed is
not passed upon here.”
15 - Footnote in the original judgement: “Delalic appeal
judgement, para. 434, p. 148 (emphasis in original). Or, as it was correctly put
by Trial Chamber II in the Kunarac decision, para. 10, p. 6, the “‘Prosecution
needs only to show that there is evidence upon which a reasonable tribunal of
fact could convict, not that the Trial Chamber itself should convict’” (emphasis
in original).
16 - Jokic Motion, para. 4.
17 - Jokic Motion, para. 5.
18 - Jokic Motion, para. 6.
19 - Jokic Motion, para. 7.
20 - Prosecutor v. Dario Kordic and Mario Cerkez, Decision
on Defence Motions for Judgement of Acquittal, Case No. IT-95-14/2-T, 6 April
2000, (“Kordic, 98 bis Decision”), para. 28 and Prosecutor v.
Miroslav Kvocka et. al, Case No. IT-98-30/1-T, Decision on Defence Motions
for Acquittal, 15 December 2000, (Kvocka, 98 bis Decision”), para. 17.
21 - Kvocka, 98 bis Decision, para. 17. See also
Kordic, 98 bis Decision and Prosecutor v. Dragoljub Kunarac et
al., Decision on Defence Motions for Judgment of Acquittal, Case No. IT-96-23-T
and IT-96-23/1-T, 3 July 2000 (“Kunarac, 98 bis Decision”).
22 - Kvocka, 98 bis Decision, para. 9. See also
Kordic, 98 bis Decision and Kunarac, 98 bis Decision.
23 - Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T,
Judgement, 2 September 1998 (“Akayesu Trial Judgment”), para. 480, reiterated
in Prosecutor v. Radislav Krstic, IT-98-33-T, Judgement, 2 August 2001
(“Krstic Trial Judgment”), para. 601, in Prosecutor v. Tihomir Blaskic,
Case No. IT-95-14-T, 3 March 2000 (“Blaskic Trial Judgment”), para. 279
and in Prosecutor v. Dario Kordic & Mario Cerkez, Case No. IT-95-14/2-T,
Judgement, 26 February 2001, (“Kordic Trial Judgment”), para. 386.
24 - Blaskic Trial Judgement, para. 280, Krstic
Trial Judgement, para. 601, Kordic Trial Judgement, para. 387, Akayesu
Trial Judgement, para. 482.
25 - Krstic Trial Judgement, para. 601.
26 - Regarding planning: Blaskic Trial Judgement, para.
278; Kordic Trial Judgement, para. 386. Regarding instigating, see Kvocka
Trial Judgement, para. 252. Regarding ordering, see Blaskic Trial Judgement,
para. 282.
27 - Prosecutor v. Dusko Tadic, Case No. IT-95-1-A,
Judgement, 15 July 1999, (“Tadic Appeal Judgement”), para. 189.
28 - Regarding co-perpetration as a form of commission, see
Prosecutor v. Milomir Stakic, Case No. IT-97-24, Judgement, 31 July 2003
(“Stakic Trial Judgment”), para. 439. Regarding joint criminal enterprise
as a form of commission, see Prosecutor v. Milorad Krnojelac, Case No.
IT-97-25-A, Judgement, 5 November 2003 (“Krnojelac Appeal Judgement”),
para. 29.
29 - Indirect perpetration in German law refers to the “perpetrator
behind the perpetrator”. This term is often used in the context of white collar
crimes and other forms of organised crime.
30 - Stakic Trial Judgement, para. 439.
31 - Prosecutor v Mitar Vasiljevic, Case No. IT-98-32-A,
Judgement, 25 February 2004, para. 100.
32 - Tadic Appeal Judgement, para. 227.
33 - Tadic Appeal Judgement, para. 196.
34 - Krstic Trial Judgement, para. 601, confirmed in
Prosecutor v. Zlatko Aleksovski, Case No. IT-95 14/1-A, Judgement, 24 March
2000, (“Aleksovski Appeal Judgement”), para. 162.
35 - Prosecutor v. Dusko Tadic, Case No. IT-95-1-T,
Judgement, 7 May 1997, (“Tadic Trial Judgement”), para. 674; Prosecutor
v. Zejnil Delalic et al, Case No. IT-96-21-T, Judgement, 16 November 1998,
(“Celebici Trial Judgement”), para. 326; Prosecutor v. Zlatko Aleksovski,
Case No. IT-95-14/1-T, Judgement, 25 June 1999, (“Aleksovski Trial Judgement”),
para. 61.
36 - Prosecutor v. Zejnil Delalic et al., Case IT-96-21-A,
20 February 2001 (“Celebici Appeal Judgement”), para. 186-198 and 266.
37 - Blagojevic Motion, Factual Basis, Part I, para.
B(1).
38 - Blagojevic Motion, Factual Basis, Part I, para.
B(2).
39 - Blagojevic Motion, Factual Basis, Part I, para.
B(3). The lawful activities listed by the Defence are the following: providing
buses and regulating traffic; discovering, blocking, disarming and capturing Bosnian
Muslim groups; searching the terrain; sending troops to Bratunac-Milici-Bracan;
providing troops to the Zvornik Brigade on 15-16 July 1995; co-ordinating various
units searching the terrain; and sending troops to Zepa.
40 - Blagojevic Motion, Factual Basis, Part I, para. C (1)
and (2).
41 - Blagojevic Motion, Factual Basis, Part I, para. A(1) and
(2).
42 - Blagojevic Motion, Factual Basis, Part I, para. A(2).
43 - Blagojevic Motion, Factual Basis, Part I, para. C (2).
44 - Response, para. 34.
45 - Response, para. 48(6).
46 - Response, para. 24.
47 - Response, paras 30-31.
48 - Response, paras 25-26.
49 - Response, para. 48(7).
50 - Response, paras 17- 18.
51 - Response, para. 18.
52 - Response, para. 18.
53 - Response, para. 19.
54 - Response, para. 20-21.
55 - See Ex. P441 and Ex. P469 (daily combat reports of 12
and 13 July 1995).
56 - Blagojevic Motion, para. 23.
57 - Blagojevic Motion, Factual Basis, Part I, para. D(1) and
(2). See also, in relation to the crimes committed at the Branjevo Military Farm
and Pilica, Factual Basis, Part I, para. B(4).
58 - Blagojevic Motion, Factual Basis, Part II, para. A.
59 - Blagojevic Motion, Factual Basis, Part II, para. B; see
also para. 24, regarding the Accused’s ability, or lack thereof, to take measures
vis-à-vis Nikolic.
60 - Blagojevic Motion, Factual Basis, Part II, para. A (1)(b).
61 - Blagojevic Motion, Factual Basis, Part II, para. A (1)(d).
62 - Blagojevic Motion, Factual Basis, Part II, para. A (1).
63 - Blagojevic Motion, Factual Basis, Part II, para. A (1)(g)
and (h). The Defence contrasts his testimony with that of Butler, P138, Deronjic,
Franken and Jevic.
64 - Blagojevic Motion, para. 23.
65 - Response, para. 48(4).
66 - Response, para. 48(8).
67 - Blagojevic Motion, para. 2.
68 - Mehmedovic, T. 1275.
69 - Nikolic, T. 1715, see also his Statement of Facts and
Acceptance of Responsibility, Ex. P82.
70 - Nikolic, T. 1805.
71 - Nikolic testifies that he met with Blagojevic and informed
him of the ongoing operations. Nikolic, T. 1699-1701.
72 - As regards co-location of forward command posts, see for
example Ex. P543 (Butler, T. 4358, 5012), and Ex. P185 (Butler, T. 4388-89). Regarding
chain of command issues, see Butler, T. 4281, 5013, Ex. P495 (Butler, T. 4529-31,
4992-93) and Ex. P541 (Butler, T. 4632-33).
73 - P140 who was from the worker’s battalion, testified regarding
involvement in burials in Kravica and Glogova. P140, T. 3404-3440, 3490.
74 - Indictment, para. 51.
75 - Tadic Appeal Judgement, para. 220.
76 - Indictment, para. 47.
77 - Djokic, T. 5446-48; P-210, T. 7375-79.
78 - Blagojevic Motion, para. 40.
79 - See, Ex. P816/ P401, Radovan Karadzic “Directive 7” specifying
the VRS strategy to separate Srebrenica from Zepa; Ex. P543, Drina Corps Order
No. 04/156-2, “Krivaja 95” Attack Plan, 2 July 1995; Ex. P826/ P402, VRS Main
Staff “Directive 7.1” issued by General Mladic directing Drina Corps to conduct
“active combat operations….around the enclave”.
80 - See daily combat reports authored by the Accused on 12
and 13 July 1995, Ex. P441 and Ex. P 469.
81 - Blagojevic Motion, para. 38.
82 - Blagojevic Motion, para. 28.
83 - See supra, paras 38 and 58.
84 - Jokic Motion, para. 16.
85 - Jokic Motion, para. 22.
86 - Dragan Jokic did submit, pursuant to Rule 72, a preliminary
motion on the form of the Indictment on 21 June 2002, Dragan Jokic Objections
to Joinder and Amendment of Indictments”, 21 June 2002. This Motion was rejected
by Trial Chamber II on 1 August 2002, Decision on Motions Challenging the Form
of Amended Joinder Indictment. Dragan Jokic subsequently submitted a response
to the Prosecution’s motion for leave to file a third Amended Joinder Indictment
(Prosecution’s Motion for Leave to File Third Amended Joinder Indictment”, 26
May 2003), wherein he raised other alleged defects of the Indictment. These arguments
were rejected by this Trial Chamber, Decision on Prosecution’s Motion for Leave
to File Third Amended Indictment, 17 June 2003. Dragan Jokic thus had several
opportunities to object to the form of the Indictment and has in fact done so.
87 - Celebici Appeal Judgement, para. 400.
88 - Jokic Motion, para. 54-55.
89 - Jokic Motion, para. 89.
90 - See supra, paras 41- 46
91 - Jokic Motion, paras. 24 to 33; see also para. 63.
92 - Jokic Motion, paras 63-68, citing Stanojevic, T. 5693;
Butler, T. 5223, 5227.
93 - Jokic Motion, paras 69-74, citing Ristanovic, T. 5406-08,
5381-82, 5412-13; Butler, T. 5209-10.
94 - Jokic Motion, paras 75-78, citing Ristanovic, T. 5415;
Butler, T. 5211.
95 - Jokic Motion, paras 80-85, citing Ristanovic, T. 5389,
5418-19; Butler, T. 5212.
96 - Jokic Motion, paras 86-87, citing Mitrovic, T. 5603-04,
5611, 5618-19.
97 - Jokic Motion, para. 91.
98 - Jokic Motion, para. 92, citing Obrenovic, T. 2545-46.
99 - Response, para. 64.
100 - Response, paras 64-65.
101 - Response, para. 65.
102 - Response, para. 72, citing Ex. D23/3, para. 40; Obrenovic,
T 2433; Butler, T 4324-29.
103 - Response, para. 73.
104 - Response, para. 75 for the burial operation, citing
Ex. P513; Ex. P 521; Ex. P535; Ex. P537; Ex. P358, p. 63-78; Butler, T 4555-56;
Ex. P515; Ex. P516; Ex. P517; Ex. P522; Ex. P523; Ex. P524; Ex. P536; Ex. P538;
and paras 71(3) and 102 to 105 for the reburial operation, citing generally Manning,
P130, Ristanovic, Stanojevic and Mitrovic.
105 - Response, paras 76 to 80, citing Mitrovic, T. 5594-95;
Stanojevic, T. 5676-77, 5693-94; Ristanovic, T. 5363-64, 5361-62, 5372-75, 5377-78,
5387-93, 5396-5401; Butler, T. 4558, Ex. P358, paras 7.17-7.27, 7.33-7.35, 7.43-7.44,
7.52, 7.55-7.58; Ex.s P514, P515, P516, P521, P522; P507, p.34; P130, T. 6646-47;
P538.
106 - Response, paras 102 to 105, citing generally Manning,
P130, Ristanovic, Stanojevic and Mitrovic.
107 - Jokic Motion, paras 34 to 44 and 57 to 61.
108 - Jokic Motion, paras 37-43 and 59, citing Ex. P394, Manual
for the Work of Commands and Staffs; Butler, T. 4271, 5112- 13, 5268-72 and Ex.
P133, Zvornik Brigade Duty Operations Officer Workbook.
109 - Jokic Motion, paras 56-58, citing P138, T. 3680-82;
and Obrenovic, T. 2511.
110 - Jokic Motion, para. 44. Jokic’s Defence specifically
contests the evidence related to the entries and notes in the Duty Operations
Officer Workbook.
111 - Jokic Motion, paras 34-36, 60-61.
112 - Response, paras 85-101.
113 - Response, paras 81-83.
114 - Response, paras 82-83, citing Butler, T. 4329-32; Obrenovic,
T. 2434-37; Ristanovic, T. 5363- 64.; Mitrovic, T. 5597, 5603; Stanojevic, T.
5677; Ex. P394, para. 66.
115 - Response, paras 85 to 88, citing Ex. P227 and Ex. P229;
Ex. P125 and Ex. P307/a; Obrenovic, T. 2587-90 and Butler, T. 4573-74; Ex. P126
and Ex. P233.
116 - Response, paras 89 to 93, citing Ex. P507, Ex. P 716,
Ex. P717, Ex. P718, Ex. P133, Ex. P232, Ex. P125; generally testimony of Barr;
see also Obrenovic, T. 2498, 2525, 2587, 2612, 2616-17; Butler, T 4582-83, 4585,
4588-89; P130, T 6637-49.
117 - Response, paras 94-100, citing Milosevic, T. 5646, 5648,
5650; P130, T 6584, 6600-22; Petrovic, T. 5499-5507; P113, Ex. P784, KT 2963-65;
Obrenovic, T. 2520-2522, 2611; Ex. P115, p.3.
118 - Jokic Motion, para.47.
119 - Jokic Motion, para. 47.
120 - Jokic Motion, para. 48.
121 - Jokic Motion, para. 49.
122 - Response, para. 108.
123 - Supra paras 68 and 71.