(a(n appellant must establish that an error of fact was critical to the verdict reached by the Trial Chamber, thereby resulting in a “grossly unfair outcome in judicial proceedings, as when a defendant is convicted despite a lack of evidence on an essential element of the crime.” Consequently, it is not each and every error of fact that will cause the Appeals Chamber to overturn a decision of the Trial Chamber, but only one that has occasioned a miscarriage of justice.^{( 17 )}

The Prosecution further submits that arguments similar to those advanced by the Appellant were raised in the Kupreskic case, yet in that case the Appeals Chamber determined that the “burden is on the appellant 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 proceedings.”^{( 18 )} The Prosecution further submitted that it was not for the Appeals Chamber to look at all the evidence on the trial record de novo since it would be difficult for the Appeals Chamber to determine issues of credibility in relation to the witnesses who testified at trial.^{( 19 )}

…the Appeals Chamber […] is bound in principle to determine whether an error was in fact committed on a substantive or procedural issue. The case-law recognises that the burden of proof on appeal is not absolute with regard to errors of law. The Appeals Chamber does not review the Trial Chamber’s findings on questions of law merely to determine whether they are reasonable but rather to determine whether they are correct. Nevertheless, the party alleging an error of law must, at least , identify the alleged error, present arguments in support of its claim and explain how the error invalidates the decision.^{( 27 )}

However, if a party’s arguments do not support its contention, that party does not automatically lose its point since the Appeals Chamber may intervene and, for other reasons, find in favour of the contention that there is an error of law.^{( 28 )}

[p]ursuant to the jurisprudence of the Tribunal, the task of hearing, assessing and weighing the evidence presented at trial is left primarily to the Trial Chamber . Thus, the Appeals Chamber must give a margin of deference to a finding of fact reached by a Trial Chamber. Only where the evidence relied on by the Trial Chamber could not have been accepted by any reasonable tribunal of fact or where the evaluation of the evidence is “wholly erroneous” may the Appeals Chamber substitute its own finding for that of the Trial Chamber.^{( 31 )}

…where the Appeals Chamber is satisfied that the Trial Chamber returned a conviction on the basis of evidence that could not have been accepted by any reasonable tribunal or where the evaluation of the evidence was “wholly erroneous”, it will overturn the conviction since, under such circumstances, no reasonable tribunal of fact could be satisfied beyond reasonable doubt that the accused had participated in the criminal conduct.^{( 32 )}

The 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.^{( 33 )}

(a) The Appeals Chamber is confronted with an alleged error of fact, but the Appeals Chamber has found no error in the legal standard applied in relation to the factual finding. No additional evidence has been admitted on appeal in relation to that finding. The Appeals Chamber will determine whether no reasonable trier of fact could have reached the conclusion of guilt beyond reasonable doubt. If a reasonable trier of fact could have reached such a conclusion, then the Appeals Chamber will affirm the finding of guilt.

(b) The Appeals Chamber is confronted with an error in the legal standard applied in relation to a factual finding, and an error of fact has been alleged in relation to that finding. No additional evidence has been admitted on appeal in relation to that finding. The Appeals Chamber will apply the correct legal standard to the evidence contained in the trial record, and will determine whether it is itself convinced beyond reasonable doubt as to the finding of guilt.

(c) The Appeals Chamber is confronted with an alleged error of fact, and – contrary to the scenario described in (a) – additional evidence has been admitted on appeal . There is no error in the legal standard applied in relation to the factual finding . There are two steps involved.

(i) The Appeals Chamber will first determine, on the basis of the trial record alone , whether no reasonable trier of fact could have reached the conclusion of guilt beyond reasonable doubt. If that is the case, then no further examination of the matter is necessary as a matter of law.

(ii) If, however, the Appeals Chamber determines that a reasonable trier of fact could have reached a conclusion of guilt beyond reasonable doubt, then the Appeals Chamber will determine whether, in light of the trial evidence and additional evidence admitted on appeal, it is itself convinced beyond reasonable doubt as to the finding of guilt .

(d) The Appeals Chamber is confronted with an error in the legal standard applied in relation to the factual finding and an alleged error of fact, and – contrary to the scenario described in (b) – additional evidence has been admitted on appeal. There are two steps involved.

(i) The Appeals Chamber will apply the correct legal standard to the evidence contained in the trial record, and will determine whether it is itself convinced beyond reasonable doubt as to the finding of guilt, on the basis of the trial record. If it is not convinced, then no further examination of the matter is necessary as a matter of law.

(ii) If, however, the Appeals Chamber, applying the correct legal standard to the evidence contained in the trial record, is itself convinced beyond reasonable doubt as to the finding of guilt, it will then proceed to determine whether, in light of the trial evidence and additional evidence admitted on appeal, it is itself still convinced beyond reasonable doubt as to the finding of guilt.

With regard to the extended form of joint criminal enterprise, what is required is the intention to participate in and further the common criminal purpose of a group and to contribute to the joint criminal enterprise or in any event to the commission of a crime by the group. In addition, responsibility for a crime other than the one which was part of the common design arises “only if, under the circumstances of the case, (i) it was foreseeable that such a crime might be perpetrated by one or other members of the group and (ii) the accused willingly took that risk” – that is, being aware that such crime was a possible consequence of the execution of that enterprise, and with that awareness, the accused decided to participate in that enterprise.^{( 62 )}

In relation to the responsibility for a crime other than that which was part of the common design, the lower standard of foreseeability — that is, an awareness that such a crime was a possible consequence of the execution of the enterprise — was applied by the Appeals Chamber. However, the extended form of joint criminal enterprise is a situation where the actor already possesses the intent to participate and further the common criminal purpose of a group. Hence, criminal responsibility may be imposed upon an actor for a crime falling outside the originally contemplated enterprise, even where he only knew that the perpetration of such a crime was merely a possible consequence, rather than substantially likely to occur, and nevertheless participated in the enterprise.

a conscious disregard of a substantial and unjustifiable risk that the material element exists or will result from [the actor's] conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation .^{( 64 )}

According to the Model Penal Code, therefore, the degree of risk involved must be substantial and unjustifiable; a mere possibility of risk is not enough.

[A] person acts recklessly within the meaning of section 1 of the Criminal Damage Act 1971 with respect to-(i) a circumstance when he is aware of a risk that it exists or will exist; (ii) a result when he is aware of a risk that it will occur; and it is, in the circumstances known to him, unreasonable to take the risk…^{( 66 )}

According to this opinion, the risk involved must be unreasonable; furthermore, with respect to a particular result, the actor in question must be aware of a risk that such a result will occur, not merely that it may occur.

The conclusion that a person is guilty of murder if he commits a fatal act knowing that it will probably cause death or grievous bodily harm but (absent an intention to kill or do grievous bodily harm) is not guilty of murder if he knew only that his act might possibly cause death or grievous bodily harm is not only supported by a preponderance of authority but is sound in principle. The conduct of a person who does an act, knowing that death or grievous bodily harm is a probable consequence , can naturally be regarded for the purposes of the criminal law as just as blameworthy as the conduct of one who does an act intended to kill or to do grievous bodily harm.^{( 68 )}

A person who does an act causing death knowing that it is probable that the act will cause death or grievous bodily harm is…guilty of murder, although such knowledge is accompanied by indifference whether death or grievous bodily harm might not be caused or not, or even by a wish that death or grievous bodily harm might not be caused. That does not mean that reckless indifference is an element of the mental state necessary to constitute the crime of murder. It is not the offender’s indifference to the consequences of his act but his knowledge that those consequences will probably occur that is the relevant element.^{( 69 )}

Even if doubt were still cast in spite of everything on whether the accused ordered the attack with the clear intention that the massacre would be committed, he would still be liable under Article 7(1) of the Statute for ordering the crimes. As has been explained above, any person who, in ordering an act, knows that there is a risk of crimes being committed and accepts that risk, shows the degree of intention necessary (recklessness) [le dol éventuel in the original French text] so as to incur responsibility for having ordered, planned or incited the commitment of the crimes.^{( 74 )}

Although the Trial Chamber, citing in a its “above, discussion on Article 7 of the Statute,”^{( 75 )} indicated that the standard it was articulating in paragraph 474 had already been explained earlier in the Trial Judgement, an examination of previous paragraphs pertaining to the legal elements of Article 7 demonstrates that the Trial Chamber did not actually do so. Other paragraphs in the Trial Judgement articulated the standard set out in paragraph 474 using different expressions. These paragraphs are quoted below :

562. The Trial Chamber concludes that General Blaskic is responsible for the crimes committed in the three villages on the basis of his negligence [dol éventuel in the French text], in other words for having ordered acts which he could only reasonably have anticipated would lead to crimes.

592. The Trial Chamber is also convinced beyond any reasonable doubt that by giving orders to the Military Police in April 1993, when he knew full well that there were criminals in its ranks((, the accused intentionally took the risk that very violent crimes would result from their participation in the offensives….

653. The Trial Chamber maintains that even though General Blaskic did not explicitly order the expulsion and killing of the civilian Muslim populations, he deliberately ran the risk of making them and their property the primary targets of the "sealing off" and offensives launched on 18 April 1993….

661. The Trial Chamber is of the view that the content of the military orders sent to the Ban Jelacic Brigade commander, the systematic and widespread aspect of the crimes perpetrated and the general context in which these acts fit permit the assertion that the accused ordered the attacks effected in April and June 1993 against the Muslim villages in the Kiseljak region. It also appears [“Il appert également” in the French text] that General Blaskic clearly had to have known that by ordering the Ban Jelacic Brigade to launch such wide-ranging attacks against essentially civilian targets extremely violent crimes would necessarily result. Lastly, it emerges from those same facts that the accused did not pursue a purely military objective but that by using military assets he also sought to implement the policy of persecution of the Muslim civilian populations set by the highest HVO authorities and that, through these offensives, he intended to make the populations in the Kiseljak municipality take flight.

738. With particular regard for the degree of organisation required, the Trial Chamber concludes that General Blaskic ordered the use of detainees to dig trenches, including under dangerous conditions at the front. The Trial Chamber also adjudges that by ordering the forced labour Blaskic knowingly took the risk that his soldiers might commit violent acts against vulnerable detainees, especially in a context of extreme tensions.

741. The Trial Chamber concludes that although General Blaskic did not order that hostages be taken, it is inconceivable that as commander he did not order the defence of the town where his headquarters were located. In so doing, Blaskic deliberately ran the risk that many detainees might be taken hostage for this purpose.

2. Aiding and Abetting

(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. […]

(ii) In the case of aiding and abetting, the requisite mental element is knowledge that the acts performed by the aider and abettor assist [in] the commission of the specific crime of the principal. […]^{( 86 )}

The Appeals Chamber considers that there are no reasons to depart from this definition .

In this respect, the mere presence at the crime scene of a person with superior authority, such as a military commander, is a probative indication for determining whether that person encouraged or supported the perpetrators of the crime.^{( 90 )}

The Appeals Chamber leaves open the possibility that in the circumstances of a given case, an omission may constitute the actus reus of aiding and abetting.

Proof that the conduct of the aider and abettor had a causal effect on the act of the principal perpetrator is not required. Furthermore, participation may occur before, during or after the act is committed and be geographically separated therefrom .^{( 91 )}

The Appeals Chamber reiterates that one of the requirements of the actus reus of aiding and abetting is that the support of the aider and abettor has a substantial effect upon the perpetration of the crime. In this regard, it agrees with the Trial Chamber that proof of a cause-effect relationship between the conduct of the aider and abettor and the commission of the crime, or proof that such conduct served as a condition precedent to the commission of the crime, is not required. It further agrees that the actus reus of aiding and abetting a crime may occur before , during, or after the principal crime has been perpetrated, and that the location at which the actus reus takes place may be removed from the location of the principal crime.

[t]hese indicia must be considered in light of the accused’s position of command , if established. Indeed, as was held by the Aleksovski Trial Chamber, an individual’s command position per se is a significant indicium that he knew about the crimes committed by his subordinates.

The Appellant contends that this statement applies the standard of strict liability by founding his actual knowledge on the basis of his position of command.

…if a commander has exercised due diligence in the fulfilment of his duties yet lacks knowledge that crimes are about to be or have been committed, such lack of knowledge cannot be held against him. However, taking into account his particular position of command and the circumstances prevailing at the time, such ignorance cannot be a defence where the absence of knowledge is the result of negligence in the discharge of his duties: this commander had reason to know within the meaning of the Statute.^{( 112 )}

At another place in the Trial Judgement, the Trial Chamber “holds, again in the words of the Commentary, that ‘(t(heir role obliges them to be constantly informed of the way in which their subordinates carry out the tasks entrusted them, and to take the necessary measures for this purpose.’”^{( 113 )} One of the duties of a commander is therefore to be informed of the behaviour of his subordinates.

(a) Reasonable and necessary measures

…it is a commander’s degree of effective control, his material ability, which will guide the Trial Chamber in determining whether he reasonably took the measures required either to prevent the crime or to punish the perpetrator…this implies that, under some circumstances, a commander may discharge his obligation to prevent or punish by reporting the matter to the competent authorities.^{( 136 )}

It appears from this statement that necessary and reasonable measures are such that can be taken within the competence of a commander as evidenced by the degree of effective control he wielded over his subordinates. The measure of submitting reports is again an example, applicable “under some circumstances.” The Appeals Chamber considers that it was open to the Trial Chamber not to list measures that might vary from case to case,^{( 137 )} since it had made it clear that such measures should be necessary and reasonable to prevent subordinates’ crimes or punish subordinates who had committed crimes. What constitutes such measures is not a matter of substantive law but of evidence, whereas the effect of such measures can be defined by law,^{( 138 )} as has been so defined by the Trial Chamber in this case. The appeal in this regard is rejected.

(b) The nexus between the failure of a superior to act and subordinates’ crimes

the superior may be considered to be causally linked to the offences, in that, but for his failure to fulfil his duty to act, the acts of his subordinates would not have been committed.^{( 145 )}

The Trial Chamber was of the view that a causal link might be considered inherent in the requirement that the superior failed to prevent the subordinates’ crimes,^{( 146 )} thus endorsing the submission to that effect made by the Appellant during his trial .

Notwithstanding the central place assumed by the principle of causation in criminal law, causation has not traditionally been postulated as a conditio sine qua non for the imposition of criminal liability on superiors for their failure to prevent or punish offence committed by their subordinates. Accordingly, the Trial Chamber has found no support for the existence of a requirement of proof of causation as a separate element of superior responsibility, either in the existing body of case law, the formation of the principle in existing treaty law, or, with one exception , in the abundant literature on this subject.^{( 147 )}

That Trial Chamber later concluded that the very existence of the principle of superior responsibility for the failure to punish, recognised under Article 7(3) of the Statute and in customary law, demonstrates the absence of a requirement of causality as a separate element of the doctrine of superior responsibility.^{( 148 )}

In conclusion, since in its motion the Defence failed to show that, according to international case-law, conventions and national military manuals – accepting that the United States manual places liability for war crimes on the shoulders of the commander who fails to punish the violators of the laws of war (motion, p. 15, 9) – command responsibility is not ascribed to a commander who fails to punish his subordinates who committed crimes, the argument based on a violation of the principle of nullem crimen sine lege is likewise inoperative.^{( 154 )}

The reports made to the defendant List as Armed Forces Commander Southeast charged him with notice of the unlawful killing of thousands of innocent people in reprisal for acts of unknown members of the population who were not lawfully subject to such punishment. Not once did he condemn such acts as unlawful. Not once did he call to account those responsible for these inhumane and barbarous acts. His failure to terminate these unlawful killings and to take adequate steps to prevent their recurrence constitutes a serious breach of duty and imposes criminal responsibility .^{( 160 )}

…in his capacity as commanding general of occupied territory, he was charged with the duty and responsibility of maintaining order and safety, the protection of the lives and property of the population, and the punishment of crime. This not only implies a control of the inhabitants in the accomplishment of these purposes, but the control and regulation of all other lawless persons or groups…The primary responsibility for the prevention and punishment of crime lies with the commanding general….^{( 161 )}

It is clear that the military tribunal regarded the punishment of crime as one of the several duties imposed on a commander in an occupied territory.

The High Contracting Parties and Parties to the conflict shall require any commander who is aware that subordinates or other persons under his control are going to commit or have committed a breach of the Conventions or of this Protocol, to initiate such steps as are necessary to prevent such violations of the Conventions or this Protocol , and, where appropriate, to initiate disciplinary or penal action against violators thereof.

Disciplinary or penal action can only be initiated after a violation is discovered , and a violator is one who has already violated a rule of law. Further, it is illogical to argue both that “a superior’s responsibility for the failure to punish is construed as a sub-category of his liability for failing to prevent the commission of unlawful acts,” and that “failure to punish only led to the imposition of criminal responsibility if it resulted in a failure to prevent the commission of future crimes .”^{( 163 )} The failure to punish and failure to prevent involve different crimes committed at different times: the failure to punish concerns past crimes committed by subordinates, whereas the failure to prevent concerns future crimes of subordinates.

It will be illogical to hold a commander criminally responsible for planning, instigating or ordering the commission of crimes and, at the same time, reproach him for not preventing or punishing them. However, as submitted by the Prosecution((, the failure to punish past crimes, which entails the commander’s responsibility under Article 7(3), may, pursuant to Article 7(1) and subject to the fulfilment of the respective mens rea and actus reus requirements, also be the basis for his liability for either aiding and abetting or instigating the commission of future crimes.

For this proposition, the Trial Chamber relied on the Regulations concerning the Application of International Law to the Armed Forces of SFRY (1988), referred to above. The Appeals Chamber recognises that paragraph 337 of the Trial Judgement did not enunciate a concurrent application of Article 7(1) and Article 7(3) of the Statute. In other passages of the Trial Judgement, however, the Trial Chamber may have fostered confusion in this regard by making conflicting statements such as: “at the time of the facts, the accused held a command position which made him responsible for the acts of his subordinates,”^{( 176 )} as well as the “command position is more of an aggravating circumstance than direct participation.”^{( 177 )} But the Appeals Chamber has to express concern at the Disposition of the Trial Judgement wherein the Trial Chamber, having found the Appellant guilty for ordering persecutions and for having committed other offences on the basis of the same factual findings, further finds:

In any event, as a commander, he failed to take the necessary and reasonable measures which would have allowed these crimes to be prevented or the perpetrators thereof to be punished….^{( 178 )}

This statement, which refers to Article 7(3) responsibility, reveals a case of concurrent conviction pursuant to Article 7(1) and Article 7(3) of the Statute, in contradiction with the view expressed in paragraph 337 of the Trial Judgement.

Where criminal responsibility for an offence is alleged under one count pursuant to both Article 7(1) and Article 7(3), and where the Trial Chamber finds that both direct responsibility and responsibility as a superior are proved, even though only one conviction is entered, the Trial Chamber must take into account the fact that both types of responsibility were proved in its consideration of sentence. This may most appropriately be considered in terms of imposing punishment on the accused for two separate offences encompassed in the one count. Alternatively, it may be considered in terms of the direct participation aggravating the Article 7(3) responsibility (as discussed above) or the accused’s seniority or position of authority aggravating his direct responsibility under Article 7(1).^{( 181 )}

[the] Trial Chamber deviated from established principles of Tribunal and/or customary law by: (1) failing to require that [the] Appellant possessed the requisite knowledge of the broader criminal attack necessary to establish a crime against humanity; (2) failing to define the actus reus of the crime of persecution in a sufficiently narrow fashion in accordance with the principles of legality and specificity; and (3) failing to require that [the] Appellant possessed the requisite specific discriminatory intent necessary to establish the crime of persecution.^{( 185 )}

The Appellant claims that the Trial Chamber erred in that there is insufficient evidence as a matter of law to support its findings.^{( 186 )} He submits that the following common statutory elements of crimes against humanity are required to sustain a conviction under Article 5 of the Statute: (i) the acts of the accused must take place in the context of a widespread or systematic attack ; (ii) the attack must be directed against a civilian population; (iii) the attack and the acts of the accused must be pursuant to a pre-existing criminal policy or plan; and (iv) the accused must have knowledge that his acts formed part of the broader criminal attack.^{( 187 )}

 

refers to four elements which for the purposes of this case may be expressed as follows:

- the existence of a political objective, a plan pursuant to which the attack is perpetrated or an ideology, in the broad sense of the word, that is, to destroy, persecute or weaken a community;

- the perpetration of a criminal act on a very large scale against a group of civilians or the repeated and continuous commission of inhumane acts linked to one another ;

- the preparation and use of significant public or private resources, whether military or other;

- the implication of high-level political and/or military authorities in the definition and establishment of the methodical plan.^{( 195 )}

The Trial Chamber went on to state that the plan “need not necessarily be declared expressly or even stated clearly and precisely”^{( 196 )} and that it could be surmised from a series of various events, examples of which it listed.^{( 197 )}

… the use of the word “population” does not mean that the entire population of the geographical entity in which the attack is taking place must have been subjected to that attack. It is sufficient to show that enough individuals were targeted in the course of the attack, or that they were targeted in such a way as to satisfy the Chamber that the attack was in fact directed against a civilian “population”, rather than against a limited and randomly selected number of individuals.^{( 212 )}

… the expression “directed against” is an expression which “specifies that in the context of a crime against humanity the civilian population is the primary object of the attack”. In order to determine whether the attack may be said to have been so directed, the Trial Chamber will consider, inter alia, the means and method used in the course of the attack, the status of the victims, their number, the discriminatory nature of the attack, the nature of the crimes committed in its course, the resistance to the assailants at the time and the extent to which the attacking force may be said to have complied or attempted to comply with the precautionary requirements of the laws of war. To the extent that the alleged crimes against humanity were committed in the course of an armed conflict, the laws of war provide a benchmark against which the Chamber may assess the nature of the attack and the legality of the acts committed in its midst.^{( 213 )}

Crimes against humanity therefore do not mean only acts committed against civilians in the strict sense of the term but include also crimes against two categories of people: those who were members of a resistance movement and former combatants - regardless of whether they wore wear (sic) uniform or not – but who were no longer taking part in hostilities when the crimes were perpetrated because they had either left the army or were no longer bearing arms or, ultimately, had been placed hors de combat, in particular, due to their wounds or their being detained. It also follows that the specific situation of the victim at the moment the crimes were committed, rather than his status, must be taken into account in determining his standing as a civilian. Finally, it can be concluded that the presence of soldiers within an intentionally targeted civilian population does not alter the civilian nature of that population.^{( 215 )}

(1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.

(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:
(a) that of being commanded by a person responsible for his subordinates ;
(b) that of having a fixed distinctive sign recognizable at a distance;
(c) that of carrying arms openly;
(d) that of conducting their operations in accordance with the laws and customs of war.

(3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

(6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.^{( 218 )}

In addition, Article 43 of Additional Protocol I sets out a new definition of armed forces “covering the different categories of the above-mentioned Article 4 of the Third Convention.”^{( 219 )}

All members of the armed forces are combatants, and only members of the armed forces are combatants. This should therefore dispense with the concept of quasi-combatants , which has sometimes been used on the basis of activities related more or less directly with the war effort. Similarly, any concept of a part-time status, a semi -civilian, semi-military status, soldier by night and peaceful citizen by day, also disappears. A civilian who is incorporated in an armed organization such as that mentioned in paragraph 1, becomes a member of the military and a combatant throughout the duration of the hostilities (or in any case, until he is permanently demobilized by the responsible command referred to in paragraph 1), whether or not he is in combat, or for the time being armed. If he is wounded, sick or shipwrecked, he is entitled to the protection of the First and Second Conventions (Article 44, paragraph 8), and, if he is captured, he is entitled to the protection of the Third Convention (Article 44, paragraph 1).^{( 221 )}

As a result, the specific situation of the victim at the time the crimes are committed may not be determinative of his civilian or non-civilian status. If he is indeed a member of an armed organization, the fact that he is not armed or in combat at the time of the commission of crimes, does not accord him civilian status.

…in wartime conditions it is inevitable that individuals belonging to the category of combatants become intermingled with the civilian population, for example, soldiers on leave visiting their families. However, provided that these are not regular units with fairly large numbers, this does not in any way change the civilian character of a population.^{( 222 )}

Thus, in order to determine whether the presence of soldiers within a civilian population deprives the population of its civilian character, the number of soldiers, as well as whether they are on leave, must be examined.

…neither the attack nor the acts of the accused needs to be supported by any form of “policy” or “plan”. There was nothing in the Statute or in customary international law at the time of the alleged acts which required proof of the existence of a plan or policy to commit these crimes. As indicated above, proof that the attack was directed against a civilian population and that it was widespread or systematic, are legal elements of the crime. But to prove these elements, it is not necessary to show that they were the result of the existence of a policy or plan. It may be useful in establishing that the attack was directed against a civilian population and that it was widespread or systematic (especially the latter) to show that there was in fact a policy or plan, but it may be possible to prove these things by reference to other matters. Thus, the existence of a policy or plan may be evidentially relevant , but it is not a legal element of the crime.^{( 236 )}

The Appeals Chamber agrees that a plan or policy is not a legal element of a crime against humanity, though it may be evidentially relevant in proving that an attack was directed against a civilian population and that it was widespread or systematic .

[f]or criminal liability pursuant to Article 5 of the Statute [to attach], “the motives of the accused for taking part in the attack are irrelevant and a crime against humanity may be committed for purely personal reasons.” Furthermore, the accused need not share the purpose or goal behind the attack. It is also irrelevant whether the accused intended his acts to be directed against the targeted population or merely against his victim. It is the attack, not the acts of the accused, which must be directed against the target population and the accused need only know that his acts are part thereof. At most, evidence that he committed the acts for purely personal reasons could be indicative of a rebuttable assumption that he was not aware that his acts were part of that attack.^{( 249 )}

The accused need not have sought all the elements of the context in which his acts were perpetrated; it suffices that, through the functions he willingly accepted, he knowingly took the risk of participating in the implementation of that context .^{( 251 )}

Moreover, the nexus with the institutional or de facto regime, on the basis of which the perpetrator acted, and the knowledge of this link, as required by the case-law of the Tribunal and the ICTR and restated above, in no manner require proof that the agent had the intent to support the regime or the full and absolute intent to act as its intermediary so long as proof of the existence of direct or indirect malicious intent or recklessness is provided. Indeed, the Trial Chambers of this Tribunal and the ICTR as well as the Appeals Chamber required only that the accused "knew" of the criminal policy or plan, which in itself does not necessarily require intent on his part or direct malicious intent ("… the agent seeks to commit the sanctioned act which is either his objective or at least the method of achieving his objective"). There may also be indirect malicious intent (the agent did not deliberately seek the outcome but knew that it would be the result) or recklessness , ("the outcome is foreseen by the perpetrator as only a probable or possible consequence ”). In other words, knowledge also includes the conduct "of a person taking a deliberate risk in the hope that the risk does not cause injury".^{( 252 )}

It follows that the mens rea specific to a crime against humanity does not require that the agent be identified with the ideology, policy or plan in whose name mass crimes were perpetrated nor even that he supported it. It suffices that he knowingly took the risk of participating in the implementation of the ideology , policy or plan. This specifically means that it must, for example, be proved that :

- the accused willingly agreed to carry out the functions he was performing;

- that these functions resulted in his collaboration with the political, military or civilian authorities defining the ideology, policy or plan at the root of the crimes;

- that he received orders relating to the ideology, policy or plan; and lastly

- that he contributed to its commission through intentional acts or by simply refusing of his own accord to take the measures necessary to prevent their perpetration.^{( 253 )}

(…) an act or omission which:

1. discriminates in fact and which denies or infringes upon a fundamental right laid down in international customary or treaty law (the actus reus); and

2. was carried out deliberately with the intention to discriminate on one of the listed grounds, specifically race, religion or politics (the mens rea).^{( 262 )}

These two elements of the crime will be considered separately.

There is no doubt that serious bodily and mental harm and infringements upon individual freedom may be characterized as persecution when, as will be indicated below, they target the members of a group because they belong to a specific community. The Trial Chamber considers that infringements of the elementary and inalienable rights of man, which are “the right to life, liberty and the security of person”, the right not to be “held in slavery or servitude”, the right not to “be subjected to torture or to cruel, inhuman or degrading treatment or punishment” and the right not to be “subjected to arbitrary arrest, detention or exile” as affirmed in Articles 3 , 4, 5 and 9 of the Universal Declaration of Human Rights, by their very essence may constitute persecution when committed on discriminatory grounds.^{( 273 )}

In this paragraph, the Trial Chamber set out parameters for acts that may constitute persecutions, including acts that cause “serious bodily and mental harm” and “infringements upon individual freedom” in circumstances where members of a particular group are targeted on discriminatory grounds. The Trial Chamber set forth a definition of persecutions that characterizes the actus reus as encompassing infringements upon fundamental human rights. It also reviewed jurisprudence from Nuremberg, World War II trials, and of the International Tribunal, in determining whether the violations covered in the Indictment may constitute persecutions, and under what circumstances .^{( 274 )} It then held that persecutions may take other forms than injury to the human person and referred to “those acts rendered serious not by their apparent cruelty but by the discrimination they seek to instill within humankind.”^{( 275 )}

the crime of “persecution” encompasses not only bodily and mental harm and infringements upon individual freedom but also acts which appear less serious, such as those targeting property, so long as the victimized persons were specially selected on grounds linked to their belonging to a particular community.^{( 276 )}

The Trial Chamber further held, in a sub-section entitled “Discrimination”:

It is the specific intent to cause injury to a human being because he belongs to a particular community or group, rather than the means employed to achieve it, that bestows on it its individual nature and gravity and which justifies its being able to constitute criminal acts which might appear in themselves not to infringe directly upon the most elementary rights of a human being, for example, attacks on property . In other words, the perpetrator of the acts of persecution does not initially target the individual but rather membership in a specific racial, religious or political group.^{( 277 )}

(i) Killing (Murder) and Causing Serious Injury

(ii) Destruction and Plunder of Property

Any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities , or to social or cooperative organizations, is prohibited, except where such destruction is rendered absolutely necessary by military operations.^{( 298 )}

Article 147 of Geneva Convention IV further prohibits the extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly. Civilian objects are protected in Articles 51 and 52 of Additional Protocol I to the Geneva Conventions. Moreover, Article 52(3) of Additional Protocol I provides that in case of doubt as to whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used. This provision is obviously addressed to militaries about to launch an attack, but it does not absolve the Prosecution, in a criminal case, of the duty of proving that an object was indeed dedicated to civilian purposes. Cultural objects and places of worship are protected in Article 53 of Additional Protocol I. The Statute of the International Tribunal incorporates prohibitions on the destruction of property in Article 2(d), as a grave breach of the Geneva Conventions,^{( 299 )} and Article 3(b), as a violation of the laws or customs of war.^{( 300 )}

(iii) Deportation, Forcible Transfer, and Forcible Displacement

1. The displacement of the civilian population shall not be ordered for reasons related to the conflict unless the security of the civilians involved or imperative military reasons so demand. Should such displacements have to be carried out, all possible measures shall be taken in order that the civilian population may be received under satisfactory conditions of shelter, hygiene, health, safety and nutrition.

2. Civilians shall not be compelled to leave their own territory for reasons connected with the conflict.

Forcible displacements, taken separately or cumulatively, can constitute a crime of persecution of equal gravity to other crimes listed in Article 5 of the Statute . […]

The Appeals Chamber concludes that displacements within a state or across a national border, for reasons not permitted under international law, are crimes punishable under customary international law, and these acts, if committed with the requisite discriminatory intent, constitute the crime of persecution under Article 5(h) of the Statute.^{( 316 )}

(iv) Inhumane Treatment of Civilians

(v) Attack on Cities, Towns, and Villages

(3) Civilians shall enjoy the protection afforded by this Section, unless and for such time as they take a direct part in hostilities.

(4) Indiscriminate attacks are prohibited. Indiscriminate attacks are:

those which are not directed at a specific military objective;

those which employ a method or means of combat which cannot be directed at a specific military objective; or

those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction .

(5) Among others, the following types of attacks are to be considered as indiscriminate :

(a) an attack by bombardment by any methods or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects; and

(b) an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated .

(vi) Conclusion

The underlying offence of persecution requires the existence of a mens rea from which it obtains its specificity. As set down in Article 5 of the Statute, it must be committed for specific reasons whether these be linked to political views , racial background or religious convictions. It is the specific intent to cause injury to a human being because he belongs to a particular community or group, rather than the means employed to achieve it, that bestows on it its individual nature and gravity and which justifies its being able to constitute criminal acts which might appear in themselves not to infringe directly upon the most elementary rights of a human being, for example, attacks on property. In other words, the perpetrator of the acts of persecution does not initially target the individual but rather membership in a specific racial, religious or political group.^{( 334 )}

[w]hile previously wars were primarily between well-established States, in modern inter-ethnic armed conflicts such as that in the former Yugoslavia, new States are often created during the conflict and ethnicity rather than nationality may become the grounds for allegiance. Or, put another way, ethnicity may become determinative of national allegiance. Under these conditions, the requirement of nationality is even less adequate to define protected persons. In such conflicts, not only the text and the drafting history of the Convention but also, and more importantly , the Convention’s object and purpose suggest that allegiance to a Party to the conflict and, correspondingly, control by this Party over persons in a given territory , may be regarded as the crucial test.^{( 359 )}

With these considerations in mind, the Appeals Chamber concluded that:

even if in the circumstances of the case the perpetrators and the victims were to be regarded as possessing the same nationality, Article 4 would still be applicable . Indeed, the victims did not owe allegiance to (and did not receive the diplomatic protection of) the State (the FRY) on whose behalf the Bosnian Serb armed forces had been fighting.^{( 360 )}

In today’s ethnic conflicts, the victims may be “assimilated” to the external State involved in the conflict, even if they formally have the same nationality as their captors, for the purposes of the application of humanitarian law, and of Article 4 of Geneva Convention IV specifically. The Appeals Chamber thus agrees with the Tadic Appeal Judgement that “even if in the circumstances of the case the perpetrators and the victims were to be regarded as possessing the same nationality , Article 4 would still be applicable”.^{( 362 )}

The Celebici Appeals Chamber agreed with the Trial Chamber’s finding in that case that:

the Bosnian Serb victims should be regarded as protected persons for the purposes of Geneva Convention IV because they “were arrested and detained mainly on the basis of their Serb identity” and “they were clearly regarded by the Bosnian authorities as belonging to the opposing party in an armed conflict and as posing a threat to the Bosnian State”.^{( 363 )}

[i]t is irrelevant to determine whether the activities with which the Bosnian Serbs were associated were in conformity with the right to self-determination or not. As previously stated, the question at issue is not whether this activity was lawful or whether it is in compliance with the right to self-determination. Rather, the issue relevant to humanitarian law is whether the civilians detained in the Celebi ci camp were protected persons in accordance with Geneva Convention IV.^{( 367 )}

It is undeniable that acts such as murder, torture, rape and inhuman treatment are criminal according to "general principles of law” recognised by all legal systems . Hence the caveat contained in Article 15, paragraph 2, of the ICCPR should be taken into account when considering the application of the principle of nullum crimen sine lege in the present case. The purpose of this principle is to prevent the prosecution and punishment of an individual for acts which he reasonably believed to be lawful at the time of their commission. It strains credibility to contend that the accused would not recognise the criminal nature of the acts alleged in the Indictment. The fact that they could not foresee the creation of an International Tribunal which would be the forum for prosecution is of no consequence.^{( 373 )}

The Appeals Chamber notes that, while the Appellant has chosen to invoke the principle of legality, he has not chosen to claim ignorance of the criminal nature of the acts alleged in the Indictment. The Appeals Chamber is satisfied, therefore, that the principle of legality has not been violated in this case.

5.6. The accused is responsible for the crimes charged against him in this indictment , pursuant to Article 7 (1) of the Statute of the Tribunal. This criminal responsibility includes the planning, instigating, ordering, committing, or otherwise aiding and abetting in the planning, preparation, or execution of any of the acts or omissions set forth below.

5.7. The accused is also, or alternatively, criminally responsible as a superior for the acts of his subordinates, pursuant to Article 7 (3) of the Statute of the Tribunal. This criminal responsibility involves the responsibility of a superior officer for the acts of his subordinate if the superior knew or had reason to know that his subordinate was about to commit such acts or had done so and the superior failed to take necessary and reasonable measures to prevent such further acts or to punish the perpetrators thereof.

Essentially, the paragraphs reproduced the language of Article 7 of the Statute, and were set out as being applicable to all the subsequent counts; each individual count then described the alleged crimes as having been committed on the Appellant’s “order or with his knowledge.”

…Yet, a thorough examination of the amended indictment by the Trial Chamber reveals that, as the case now stands, out of the present 19 charges alleged against the accused, the latter is not in a position to distinguish the count or counts charged under either Article 7(1) or Article 7(3) of the Statute. Can it be considered that each count may somehow fall under either type of responsibility? Such a question can, in theory, be answered in the affirmative since the concept of concurrent legal characterisations has been identified and is known in national criminal law.

The Trial Chamber is, however, of the opinion that, in international humanitarian law, more than in any other area, it is incumbent upon the Prosecutor to specify the type of responsibility under which a criminal act falls as promptly and as far as may be practicable as soon as the indictment has been issued. […] The challenged indictment must therefore be reviewed in the light of whether or not the accused has been able to prepare his defence. Yet it must be noted that the Prosecutor merely stated the two types of individual criminal responsibility falling under Article 7(1) and Article 7(3) of the Statute respectively in paragraphs 5.6 and 5.7 of paragraph 5 of the indictment under the heading "General Allegations". All the counts then describe the alleged acts as having been committed by the accused "by his order or with his knowledge."

When reviewed from this strict point of view, which is more than merely technical in respect of the rights of the Defence, the amended indictment, confirmed on 22 November 1996, has even been changed for the worse when compared to the initial indictment confirmed on 10 November 1995.

…In conclusion, the Trial Chamber is of the opinion that the indictment should be amended as to the nature and the legal basis of the criminal responsibility for which the accused is liable.^{( 404 )}

[n]othing prevents the Prosecutor from pleading an alternative responsibility (Article 7(1) or (7(3) of the Statute), but the factual allegations supporting either alternative must be sufficiently precise so as to permit the accused to prepare his defence on either or both alternatives.^{( 405 )}

The Trial Chamber ordered the Prosecution to amend “paragraphs 5.6 and 5.7 of the Amended Indictment relating to the accused's role in the acts charged by providing sufficient factual indications in support of the types of responsibility invoked pursuant to the provisions of Articles 7(1) and 7(3) of the Statute.”^{( 406 )}

3. Tihomir BLASKI], since the establishment of the HVO on 8 April 1992, was instrumental in the establishment and operation of the HVO in the Central Bosnia Operative Zone . He was a Colonel in the HVO and from 27 June 1992 he was the Commander of the Regional Headquarters of the HVO Armed Forces in Central Bosnia (HVO Armed Forces Region of Central Bosnia) and remained so at all times material to this indictment . Tihomir BLASKI]’s authority and duties, as an HVO Commander, are set forth in the Decree on the Armed Forces of the Croatian Community of Herceg-Bosna, dated 17 October 1992. That Decree provides, inter alia, that a Commander has authority and responsibility for the combat readiness of troops under his command, the mobilisation of armed forces and police units, and the appointment of commanders.

4. Tihomir BLASKI] exercised his control in military matters in a variety of ways , including, but not limited to, negotiating cease-fire agreements, negotiating with United Nations officials; implementing the organisational structures of the Armed Forces of the HVO; appointing and relieving military commanders; deploying troops, artillery, and other units under his command; issuing orders to municipal HVO headquarters; and controlling HVO military units and detention centres that were operating within his area of command.

In its Decision of 4 April 1997, the Trial Chamber requested that the Prosecutor amend the indictment by providing sufficient factual indications in support of one or the other of the types of responsibility invoked pursuant to the provisions of Articles 7(1) and 7(3) of the Statute.

The Trial Chamber notes that the Prosecutor’s characterisation of the role of the accused in the alleged crimes as it appears in paragraphs 6, 8, 9, 10, 11, 12, 15 and 16 merely repeats the wording of Articles 7(1) and 7(3) without providing any further details about the acts alleged in respect of the type of responsibility incurred.

The Trial Chamber will not repeat its orders and does not consider that, at this stage of the proceedings, it need grant any additional time to the Prosecutor to amend the indictment further.

For this reason, the Trial Chamber will not fail to draw all the legal consequences at trial of the possible total or partial failure to satisfy the obligations incumbent upon the Prosecutor insofar as that failure inter alia might not have permitted the accused to prepare his defence pursuant to Article 21 of the Statute and the principles identified in its Decision.^{( 408 )}

(a) (i) that the accused is the superior^{( 451 )} of (ii) subordinates sufficiently identified,^{( 452 )} (iii) over whom he had effective control – in the sense of a material ability to prevent or punish criminal conduct ^{( 453 )}– and (iv) for whose acts he is alleged to be responsible;^{( 454 )}

(b) the conduct of the accused by which he may be found to (i) have known or had reason to know that the crimes were about to be committed or had been committed by his subordinates,^{( 455 )} and (ii) the related conduct of those others for whom he is alleged to be responsible.^{( 456 )} The facts relevant to the acts of those others for whose acts the accused is alleged to be responsible as a superior, although the Prosecution remains obliged to give all the particulars which it is able to give, will usually be stated with less precision ,^{( 457 )} because the detail of those acts are often unknown, and because the acts themselves are often not very much in issue;^{( 458 )} and

(c) the conduct of the accused by which he may be found to have failed to take the necessary and reasonable measures to prevent such acts or to punish the persons who committed them.^{( 459 )}

(a) Was the Second Amended Indictment pleaded in accordance with the general principles of pleading?

6.0 From May 1992 to January 1994 Tihomir BLASKI], together with members of the HVO, planned, instigated, ordered or otherwise aided and abetted in the planning , preparation, or execution of a crime against humanity by persecuting Bosnian Muslim civilians on political, religious or racial grounds, throughout the municipalities of Vitez, Busovaca, Kiseljak, and Zenica,

and, or in the alternative, knew or had reason to know that subordinates were about to do the same, or had done so, and failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.^{( 475 )}

The following paragraphs plead the remaining counts in the same manner, and repeat the words indicated in italics above.

(b) Whether the defects in the Second Amended Indictment rendered the trial unfair

gave strong indication that it believed the trial to be purely about ‘command responsibility’ , thus misleading the Appellant as to the possibility of his conviction under Article 7(1). The trial record is replete with examples of the Trial Chamber stating that the subject of the Appellant’s trial was “command responsibility.”^{( 483 )}

[a] defective indictment, in and of itself, may, in certain circumstances, cause the Appeals Chamber to reverse a conviction.^{( 495 )}

[t]he Appeals Chamber, however, does 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 detailing the factual basis underpinning the charges against him or her. Nevertheless, in light of the factual and legal complexities normally associated with the crimes within the jurisdiction of this Tribunal, there can only be a limited number of cases that fall within that category .^{( 496 )}

[t]he Appeals Chamber emphasises that the vagueness of the Amended Indictment in the present case constitutes neither a minor defect nor a technical imperfection . It goes to the heart of the substantial safeguards that an indictment is intended to furnish to an accused, namely to inform him of the case he has to meet. If such a fundamental defect can indeed be held to be harmless in any circumstances , it would only be through demonstrating that Zoran and Mirjan Kupreskic’s ability to prepare their defence was not materially impaired. In the absence of such a showing here, the conclusion must be that such a fundamental defect in the Amended Indictment did indeed cause injustice, since the Defendants’ right to prepare their defence was seriously infringed. The trial against Zoran and Mirjan Kupreskic was , thereby, rendered unfair.^{( 497 )}

Prosecution informed the Appeals Chamber that by 2 February 2001, all exculpatory non-public evidence would be identified and Trial Chamber III would be requested to authorize its release.

The Prosecutor shall, as soon as practicable, disclose to the defence the existence of material known to the Prosecutor which in any way tends to suggest the innocence or mitigate the guilt of the accused or may affect the credibility of prosecution evidence.^{( 535 )}

…[t]he Appeals Chamber is conscious that a broader interpretation of the obligation to disclose evidence may well increase the burden on the Prosecution, both in terms of the volume of material to be disclosed, and in terms of the effort expended in determining whether material is exculpatory. Given the fundamental importance of disclosing exculpatory evidence, however, it would be against the interests of a fair trial to limit the Rule’s scope…^{( 539 )}

…if the Defence satisfies the Tribunal that there has been a failure by the Prosecution to comply with Rule 68, the Tribunal - in addressing the aspect of appropriate remedies - will examine whether or not the Defence has been prejudiced by that failure to comply before considering whether a remedy is appropriate.^{( 543 )}

If the Defence satisfies a Chamber that the Prosecution has failed to comply with Rule 68, the Chamber in addressing what is the appropriate remedy, has to examine whether or not the Defence has been prejudiced by a breach of Rule 68 and rule accordingly pursuant to Rule 68bis.^{( 544 )}

(a) Exhibit 2

…the Appeals Chamber still expects an explanation from the [P]rosecution for its non-disclosure of the ABiH archive during the [Kordic] trial.^{( 551 )}

The Appeals Chamber is sympathetic to the argument of the Prosecution that in most instances material requires processing, translation, analysis and identification as exculpatory material. The Prosecution cannot be expected to disclose material which – despite its best efforts - it has not been able to review and assess.^{( 553 )}

(b) Exhibit H1

(c) Witness BA5 and Witness BA3

(d) Exhibit 16 and Exhibit 25

…the Appellant’s counsel knew of the existence of the evidence that might exculpate the Appellant soon after the evidence was given in open court at the Tribunal. Yet he remained silent before the Trial Chamber until the Production Motion was filed on appeal. There has been no explanation from the Appellant as to why he remained reticent in spite of this information. A fact concerning the question as to whether the Appellant was capable of ordering certain units of the HVO to attack villages and towns should have alerted any diligent counsel so that he or she would bring it to the attention of the Trial Chamber which might be persuaded to reconsider the evidence. However, this Chamber is not prepared to say that the Appellant has effectively waived his right to complain about non-disclosure. As this Chamber considers that Rule 68 continues to be applicable at the appellate stage of a case before this Tribunal, the Prosecution continues to be under a duty to disclose by virtue of the Statute and the Rules, being thus bound to do so as a matter of law . Further, the Chamber takes note that counsel for the Appellant renewed a request for discovery under, inter alia, Rule 68, in a letter dated 10 February 2000 addressed to the Prosecution, which was sent some time before the delivery of the judgement by the Trial Chamber. The delayed reaction by the Defence in this case cannot alter the duty of the Prosecution to comply with Rule 68.^{( 598 )}

…the Appellant has not satisfied the Appeals Chamber that during this appeal, the Prosecution has failed to discharge its obligations under sub-Rule 66(A)(ii) and Rule 68, the scope of the application of which has been clarified only in this decision ...^{( 603 )}

Rule 68 prima facie obliges the Prosecution to monitor the testimony of witnesses , and to disclose material relevant to the impeachment of the witness, during or after testimony. If the amount of material is extensive, the parties are entitled to request an adjournment in order to properly prepare themselves.^{( 605 )}

(a) Whether there was direct evidence that the Appellant ordered the commission of the crimes

(b) Whether there was circumstantial evidence that the Appellant ordered the commission of the crimes

(c) Whether the Viteska Brigade took part in the attack

(d) Whether new evidence suggests that the crimes were planned and ordered by others

(e) Whether the Appellant was reckless or assumed the risk that civilians would be harmed

(a) The orders issued by the Appellant

…That order indicated that the forces of the Military Police Fourth Battalion, the N. Š. Zrinski unit and the civilian police would also take part in the combat. The order required the forces to be ready to open fire at 05:30 hours and, by way of combat formation, provided for blockade (observation and ambush), search and attack forces. …The order closed by saying that the “instruction given previously [should be] complied with”, although the Trial Chamber was not able to establish what that instruction was. ^{( 679 )}

[i]n front of you are the forces of the IV Battalion VP, behind you are your forces , to the right of you are the forces of the unit N.S. Zrinski, and to the left of you are the forces of the civilian police.

(b) The troops involved in the commission of the crimes

…the evidence established on the contrary that the crimes committed were not the work of the Military Police alone but were also ascribable to the regular HVO units , in particular, the Viteska Brigade and the Domobrani.^{( 694 )}

(c) New evidence suggests that individuals other than the Appellant planned and ordered the commission of crimes in the Ahmici area

(d) Whether the Appellant was aware of the substantial likelihood that civilians would be harmed

[e]ven if doubt were still cast in spite of everything on whether the accused ordered the attack with the clear intention that the massacre would be committed, he would still be liable under Article 7(1) of the Statute for ordering the crimes...[A]ny person who, in ordering an act, knows that there is a risk of crimes being committed and accepts that risk, shows the degree of intention necessary (recklessness) [ le dol éventuel in the original French text] so as to incur responsibility for having ordered, planned or incited the commitment of the crimes. In this case, the accused knew that the troops which he had used to carry out the order of attack of 16 April had previously been guilty of many crimes against the Muslim population of Bosnia. ^{( 707 )}

(a) Whether the Appellant had effective control over the Military Police

(b) Whether the Appellant was aware of the crimes committed in the Ahmici area

(c) Whether the Appellant is responsible for failing to prevent or punish

(i) Whether the Appellant had power to punish members of the Military Police

(ii) Whether the Appellant had information as to particular suspects

(iii) Whether the Appellant reported suspicions regarding Ljubicic and the Military Police to his superior commander

(iv)Whether the Appellant ordered an investigation

(d) Whether new evidence shows that the Appellant did not fail to investigate or punish

[i]n the final analysis, the Trial Chamber is convinced that General Blaskic ordered the attacks that gave rise to these crimes. In any event, it is clear that he never took any reasonable measure to prevent the crimes being committed or to punish those responsible for them.^{( 779 )}

…According to witness Baggesen, “the only one who had command over the Military Police was Mr. Blaskic.” That witness testified to the attempt by the Commander of the Travnik Military Police to abduct Dzemo Merdan as a protest against the slowness of the inquiry carried out into the abduction of four officers of the Stjepan Tomasevic brigade. When requests made by UNPROFOR and the ECMM remained unsatisfied, the commander in question abandoned this forthwith after receiving an order by telephone from the accused.^{( 792 )}

 

since [the Appellant] had reason to know that crimes had been, or were, about to be, committed, as the hierarchical superior of the forces in question, the accused was bound to take reasonable measures to forestall or prevent them [… ] the Trial Chamber considers that the accused knew that crimes had been or were about to be committed and took no action as a consequence. ^{( 806 )}

…. In any event, it is clear that he never took any reasonable measure to prevent the crimes being committed or to punish those responsible for them.^{( 820 )}

…the crimes committed at Ahmici had been carried out either by Muslims wearing HVO uniforms or by Muslim extremists who were out of control, or even by Serbs who could have infiltrated the HVO controlled zone.^{( 825 )}

[i]t must, however, be recognised that international law cannot oblige a superior to perform the impossible. Hence, a superior may only be held criminally responsible for failing to take such measures that are within his powers. The question then arises of what actions are to be considered to be within the superior’s powers in this sense. As the corollary to the standard adopted by the Trial Chamber with respect to the concept of superior, we conclude that a superior should be held responsible for failing to take such measures that are within his material possibility.^{( 829 )}

…it was impossible to ascertain any strategic or military reasons for the 16 April 1993 attack on Vitez and Stari Vitez. In the event that there had been, the devastation visited upon the town was out of all proportion with military necessity.^{( 839 )}

This reading of the Trial Judgement seems to be borne out by the conviction of the Appellant on Count 12 of the Indictment, charging devastation not justified by military necessity.

(a) The role of the Appellant

(i) The indicia of planning

(ii) The participation of the HVO troops in the hostilities

(b) Was the town of Vitez a legitimate military target?

(c) Extent of civilian casualties

(d) Was the Appellant aware of a substantial likelihood that crimes would be committed during the attack of 16 April 1993?

(e) Conclusion

(a) Evidence of the use of explosives in the bombing

(b) Were the explosives in the Appellant’s exclusive control?

(c) Conclusion

(a) Did the Appellant order the attack against Stari Vitez on 18 July 1993?

(b) The nature of the attack on Stari Vitez

(c) Was the Appellant aware of a substantial likelihood that the crime of using “ baby bombs” against Muslim civilians or their property would be committed during the attack of 18 July 1993?

(d) Conclusion

(a) Donja Veceriska

(b) Gacice

(c) Grbavica

(d) Conclusions

(a) The Appellant’s orders to ensure compliance with humanitarian law

(b) Did the Appellant have prior knowledge that the Vitezovi would commit acts of violence?

(c) The Appellant’s reorganisation of the Military Police prior to the attack on Grbavica in September 1993

(d) Conclusion

(a) The Appellant’s ability to discipline the Vitezovi

(b) The Appellant’s reporting of the Vitezovi’s conduct to his superiors

(c) The Appellant’s responsibility for crimes committed by other units of the HVO

(d) Conclusion