Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                          Tuesday, 3 April 2007

 2                          [Open session]

 3                          [Appeal Judgement]

 4                          [The accused entered court]

 5                           --- Upon commencing at 2.00 p.m.

 6            JUDGE MERON:  Registrar, please would you call the case.

 7            THE REGISTRAR:  Good afternoon, Mr. President, Your Honours.  This

 8    is IT-99-36-A, the Prosecutor versus Radoslav Brdjanin.

 9            JUDGE MERON:  Thank you.  Could I please have the appearances of

10    the parties.

11            The Prosecution first.

12            MS. BRADY:  Good afternoon, Your Honours.  Helen Brady appearing

13    on behalf of the Prosecution.  With me today are Ms. Katarina Margetts and

14    Ms. Barbara Goy and our case manager Ms. Lourdes Garcia.

15            JUDGE MERON:  Thank you, Ms. Brady.

16            The Defence.

17            MR. ACKERMAN:  Good afternoon, Your Honours.  I am John Ackerman,

18    and I'm here with Ms. Barbara Baruch.

19            JUDGE MERON:  Thank you, Mr. Ackerman.

20            Mr. Brdjanin, can you hear the proceedings in a language you can

21    understand?

22            THE ACCUSED: [Interpretation] Good afternoon, everyone.  Yes, I

23    can follow in a language that I can understand.

24            JUDGE MERON:  Thank you, Mr. Brdjanin.  You may sit down.

25            As the registrar announced, the case on our agenda today is

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 1    Prosecutor versus Radoslav Brdjanin.  In accordance with the scheduling

 2    order issued on 16 March 2007, the Appeals Chamber will now deliver its

 3    judgement.

 4            Following our usual practice, I will not read out the text of the

 5    judgement, except for the disposition; instead, I will summarise the

 6    issues raised on appeal and the findings by the Appeals Chamber.  I

 7    emphasise that this is a summary only and the authoritative account of the

 8    Chamber's findings is to be found in the written judgement, which will be

 9    made available at the end of this session.

10            The operative indictment in this case charged Brdjanin with a

11    range of crimes committed between April and December of 1992 in

12    Bosnia-Herzegovina, and particularly in the Autonomous Region of Krajina,

13    also known as ARK.  During this time, Brdjanin held various positions in

14    the ARK, including serving as the President of the ARK Crisis Staff and

15    later of its successor body, the ARK War Presidency.

16            In its judgement of 1 September 2004, Trial Chamber II convicted

17    Brdjanin pursuant to Article 7(1) of the Statute of the Tribunal for

18    persecution as a crime against humanity, (Count 3); incorporating torture

19    as a crime against humanity, (Count 6); deportation as a crime against

20    humanity, (Count 8); and inhumane acts forcible transfer as a crime

21    against humanity, (Count 9); wilful killing as a grave breech of the

22    Geneva Conventions, (Count 5); torture as a grave breach of the Geneva

23    Conventions, (Count 7); wanton destruction of cities, towns, or villages

24    or devastation not justified by military necessity, as a violation of the

25    laws or customs of war, (Count 11); and destruction or wilful damage done

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 1    to institutions dedicated to religion as a violation of the laws or

 2    customs of war (Count 12).

 3            The Trial Chamber found Brdjanin not guilty of the crimes of:

 4    Genocide, (Count 1); complicity in genocide, (Count 2); extermination as a

 5    crime against humanity, (Count 4); and unlawful and wanton extensive

 6    destruction and appropriation of property not justified by military

 7    necessity as a grave breach of the Geneva Conventions, (Count 10).

 8            Trial Chamber II sentence Brdjanin to a single sentence of 32

 9    years' imprisonment.  Both the Prosecution and Brdjanin appealed the

10    judgement, and we heard oral arguments regarding these appeals on 7 and 8

11    December 2006.  In these oral arguments and in an earlier written brief,

12    we also heard the views of the association of Defence counsel with regard

13    to the issue of joint criminal enterprise ("JCE") which features

14    prominently in the Prosecution appeal.

15            I will first briefly address the grounds of appeal put forward by

16    Brdjanin and then turn to those put forward by the Prosecution.

17            In his appeal, Brdjanin raised well over 150 alleged errors.  I

18    shall not discuss all of them; instead, I shall first discuss the Appeals

19    Chamber's general approach to addressing these alleged errors.  I will

20    then discuss the Appeals Chamber's overall conclusions with regard to

21    Brdjanin's challenges to the Trial Chamber's findings as to Bosnian Serb

22    political agenda and his own role in its implementation.  Lastly, I will

23    discuss certain alleged errors that constitute direct challenges against

24    specific convictions.

25            To begin with, the Appeals Chamber has chosen to dismiss summarily

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 1    a high number of the errors alleged by Brdjanin.  The Appeals Chamber has

 2    done so where the allege errors (1) challenge factual findings on which a

 3    conviction does not rely; (2) misrepresent the Trial Chamber's factual

 4    findings or ignore other relevant factual findings; (3) constitute mere

 5    assertions to that the Trial Chamber failed to consider relevant evidence;

 6    (4) constitute mere assertions that the Trial Chamber could not have

 7    reasonably inferred a particular conclusion from circumstantial evidence;

 8    (5) are clearly irrelevant or lend support to the challenged finding; (6)

 9    challenge the Trial Chamber's reliance or lack of reliance on one piece of

10    evidence without explaining why the finding should not stand on the basis

11    of the remaining evidence; (7) are contrary to common sense; or (8) relate

12    to factual findings whose relevance is unclear.  In practice, through

13    these eight categories I mentioned, the Appeals Chamber has disposed of

14    dozens of Brdjanin's alleged errors in a summary way.

15            Nonetheless, the Appeals Chamber has dealt in a substantial

16    fashion with the many other alleged errors.  Some of these alleged errors

17    go to the Trial Chamber's findings with regard to the Bosnian Serb

18    political agenda and Brdjanin's role in its implementation.  The Appeals

19    Chamber has not found Brdjanin's arguments in this respect convincing so

20    as to warrant reversal of his convictions.

21            In particular, the Appeals Chamber leaves undisturbed the Trial

22    Chamber's conclusions about the following:  The nature of the Strategic

23    Plan to create a Serbian entity from which most non-Serbs would be

24    permanently removed; the authority of the ARK Crisis Staff over municipal

25    authorities, including the Prijedor municipality; the relationship between

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 1    the ARK and other bodies, such as the Bosnian Serb army, the police, and

 2    the paramilitary groups; and the contribution of the ARK Crisis Staff

 3    decisions to the dismissals, disarmament, and resettlement of the non-Serb

 4    population.

 5            The Appeals Chamber also leaves undisturbed the Trial Chamber's

 6    finding that Brdjanin had knowledge of and made contribution to the

 7    Strategic Plan and that Brdjanin knew that crimes were being committed in

 8    furtherance of the Strategic Plan.

 9            I now turn to Brdjanin's challenges as they relate to specific

10    crimes.  I will begin by discussing matters on which the Appeals Chamber

11    reverses the Trial Chamber.  There are two such matters.

12            The first matter relates to Brdjanin's conviction for torture in

13    the camps and detention facilities.  Brdjanin claims that the Trial

14    Chamber erred in finding that he aided and abetted these tortures.  The

15    Appeals Chamber agrees that there is insufficient evidence for a

16    reasonable trier of fact to find that Brdjanin's conduct had a substantial

17    effect on the commission of torture.  The Trial Chamber inferred that

18    Brdjanin's failure to intervene to prevent torture in the camps and

19    detention facilities, together with his public attitude, had the effect of

20    encouraging personnel in camps and detention facilities to commit torture.

21            The Trial Chamber reached this conclusion, however, without any

22    evidence that such personnel were even aware of Brdjanin's public attitude

23    towards the camps and facilities.  The Appeals Chamber accordingly

24    reverses Brdjanin's convictions for torture in camps and detention

25    facilities.

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 1            In particular, the Appeals Chamber overturns Brdjanin's conviction

 2    for aiding and abetting members of the Bosnian Serb forces in the

 3    commission of the following crimes:  The torture of a number of Bosnian

 4    Muslim civilians in the Kozila camp in early July 1992; the torture of a

 5    number of Bosnian Muslim women in the Keraterm camp in July 1992; the

 6    torture of a number of Bosnian Muslim women in the Trnopolje camp between

 7    May and October 1992; the torture of a number of Bosnian Muslim women in

 8    the Omarska camp in June 1992; the torture of a number of Bosnian Muslim

 9    men in the SUP building in Teslic; and the torture of a number of Bosnian

10    Muslim and Bosnian Croat civilians in the community building in Pribinic

11    in June 1992.

12            For the reasons mentioned in the judgement, the Appeals Chamber

13    does not address whether Brdjanin could instead be liable for these acts

14    of torture via a theory of omission proper. The reversal of this

15    conviction also has a limited effect on part of Brdjanin's conviction for

16    persecution.

17            The Appeals Chamber also proprio motu reverses the Trial Chamber

18    in another respect.  It reverses the conviction entered by the Trial

19    Chamber for wanton destruction of cities, towns, or villages, or

20    devastation not justified by military necessity to the extent that this

21    conviction relates to the municipality of Bosanska Krupa.  For the other

22    municipalities, however, the Appeals Chamber concludes that the Trial

23    Chamber did not err in finding Brdjanin responsible beyond reasonable

24    doubt for aiding and abetting the crimes of (1) wanton destruction of

25    cities, towns, and villages or devastation not justified by military

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 1    necessity; and (2) destruction or wilful damage done to religious

 2    institutions.

 3            I now turn to other challenges raised by Brdjanin to his

 4    convictions for specific crimes.

 5            Brdjanin raises numerous other challenges in relation to his

 6    conviction for torture.  He claims that the Trial Chamber erred as a

 7    matter of law in finding that "severe pain or suffering" is the level

 8    required for a finding of torture.  The Appeals Chamber rejects this

 9    argument and affirms that "severe pain or suffering" is the appropriate

10    level required under customary international law for a finding of torture.

11            Whether this level is met is a fact-specific inquiry to be carried

12    out by a trier of fact.  In particular, the Appeals Chamber rejects

13    Brdjanin's suggestion that a recent - and subsequently withdrawn -

14    memorandum of the United States Department of Justice has modified such

15    standard under international law.  Not only has the memorandum been

16    withdrawn, but in any event, the position of only one state could not

17    change customary international law.

18            Brdjanin also claims that certain acts of torture - namely, rapes

19    and sexual assaults - were individual domestic crimes rather than crimes

20    committed in the context of an armed conflict or as part of a wide spread

21    and systematic attack.  The Appeals Chamber rejects this argument, as the

22    facts of this case clearly support the Trial Chamber's findings otherwise.

23            The Trial Chamber did not reach an unreasonable conclusion when it

24    determined that crimes committed by combatants and by members of forces

25    accompanying them, while searching for weapons during an armed conflict

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 1    and taking advantage of their position, are crimes committed in the

 2    context of an armed conflict.  The Trial Chamber also reasonably concluded

 3    from the evidence that these crimes occurred as a part of a wide spread or

 4    systematic attack against the civilian population.

 5            Brdjanin raises certain other challenges with regard to his

 6    constriction for aiding and abetting acts of torture committed during

 7    attacks on towns, villages, and neighbourhoods.  The Appeals Chamber

 8    rejects these challenges.  In particular, it leaves undisturbed the Trial

 9    Chamber's conclusion that ARK Crisis Staff decisions - including those on

10    disarmament - had the substantial effect on these attacks.

11            With regard to his conviction for wilful killing, Brdjanin argues

12    that this conviction must be overturned because, among other things, the

13    Trial Chamber failed to show that the forces that committed these killings

14    were Serb forces from Bosnia as opposed to, for example, groups from

15    Serbia.  In light of the clear definition given to the expression "Bosnian

16    Serb forces" in the indictment, at trial, and in the trial judgement, the

17    Appeals Chamber rejects this argument.

18            Brdjanin also raises certain challenges to his conviction for

19    persecution.  The Trial Chamber had found that Brdjanin aided and abetted

20    the crime of persecution with respect to the following acts:  Wilful

21    killing; torture; destruction of property and religious buildings;

22    deportation and forcible transfer; physical violence; rapes; sexual

23    assault; constant humiliation and degradation; denial of the right of

24    freedom of movement; and denial of the right to proper judicial process.

25            The Trial Chamber had also found that Brdjanin instigated the

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 1    crime of persecution with regard to deportation and forcible transfer and

 2    ordered the crime of persecution with respect to the denial of the right

 3    of employment.  The Appeals Chamber dismisses Brdjanin's argument that, as

 4    a matter of law, certain types of conduct (that is, acts of physical

 5    violence; the denial of the right not to be denied employment; and the

 6    denial of the rights of freedom of movement and proper judicial process)

 7    fall outside the jurisdiction of the Tribunal.

 8            In this regard the Appeals Chamber recalls that acts underlying

 9    persecutions under Article 5(h) of the Statute need not necessarily be

10    considered a crime in international law; rather, they must be of equal

11    gravity to the crimes listed in Article 5 of the Statute, whether

12    considered in isolation or in conjunction with other acts charged.  The

13    Appeals Chamber also finds that Brdjanin has failed to show why no

14    reasonable trier of facts could have reached the conclusion, beyond

15    reasonable doubt, that Bosnian Muslims and Croats in the ARK were denied

16    the right to proper judicial process on discriminatory grounds.

17            Brdjanin also challenges the Trial Chamber's finding that he was

18    responsible for aiding and abetting and instigating the crimes against

19    humanity of deportation and forcible transfer in light of the decisions on

20    so-called, and I quote, "Voluntary resettlement" issued by the ARK

21    authorities.  Seen in the context of the events established beyond

22    reasonable doubt by the evidence, the Appeals Chamber considers that

23    Brdjanin has not shown how the Trial Chamber erred in finding that the

24    decisions on voluntary resettlement and on disarmament prompted the

25    authorities who implemented them to commit the crimes of deportation and

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 1    forcible transfer.

 2            I turn now to the grounds of appeal put forward by the

 3    Prosecution.  The Prosecution initially put forth five grounds of appeal.

 4    One of them was subsequently withdrawn and is therefore disregarded in the

 5    judgement.

 6            Of the remaining four grounds, the first two involve questions of

 7    law relating to the doctrine of joint criminal enterprise, also known as

 8    the JCE.  In ground 1 of its appeal, the Prosecution challenged the Trial

 9    Chamber's implicit finding that the principal perpetrators of a crime -

10    that is, the individuals who actually carry out the actus reus of the

11    crime - must be members of the JCE for any convictions via JCE to attach

12    with regard to those crimes.

13            In ground 2 of its appeal, the Prosecution challenges two legal

14    holdings of the Trial Chamber:  First, the holding that there must be an

15    agreement or understanding between the accused and the principal

16    perpetrator for the accused to be convicted via JCE; and, second, that JCE

17    is applicable only to enterprises smaller than the one alleged in this

18    case.

19            After consideration of post-World War II jurisprudence and the

20    Tribunal's own jurisprudence, the Appeals Chamber grants grounds 1 and 2

21    of the Prosecution's appeal.

22            Briefly, as to ground 1, the Appeals Chamber finds that a member

23    of a JCE can be held responsible for crimes committed by non-members of

24    the enterprise, provided that the crime can be imputed to one member of

25    the joint criminal enterprise and that this member, when using the

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 1    non-member principal perpetrator, acted in accordance with the common

 2    plan.

 3            As to ground 2, the Appeals Chamber finds that the Trial Chamber

 4    erred in holding that the Prosecution must prove that the accused had a

 5    specific agreement with the principal perpetrator to commit a particular

 6    crime.  Such a showing of a specific agreement is unnecessary in view of

 7    the common plan necessarily shared by all JCE members.  Nonetheless, the

 8    Prosecution must of course prove other elements, including the fact that

 9    the accused shared the common criminal purpose and that the crime in

10    question forms part of that common criminal purpose.  Also with regard to

11    ground 2, the Appeals Chamber finds that the Trial Chamber erred in

12    finding that the doctrine of the JCE applies only to relatively

13    small-scale cases.  Prior cases provide clear authority for JCEs on scales

14    much larger than one municipality.

15            The Appeals Chamber thus grants ground 1 and 2 of the

16    Prosecution's appeal with regard to the questions of law presented

17    therein.

18            A further question is how this should affect the convictions in

19    the case at hand.  In this case, the Prosecution submitted that it would

20    be unfair to enter convictions for JCE against Brdjanin based on the

21    Prosecution prevailing with regard to ground 1 of its appeal.  This is

22    because, at trial, the parties shared an understanding that the principal

23    perpetrators must belong to the JCE for Brdjanin to be convicted via JCE.

24    In light of this understanding inter partes, it would be unfair to enter

25    new convictions against Brdjanin on this basis, as he could reasonably

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 1    have thought at trial that he could defeat the Prosecution's case by

 2    showing that the principal perpetrators were not JCE members.  Thus, he

 3    might have foregone other lines of defence on this assumption.

 4            The Appeals Chamber finds that, in view of this, new convictions

 5    can be entered against Brdjanin in the specific and peculiar circumstances

 6    of this case only if the principal perpetrators were found to be JCE

 7    members.  The Appeals Chamber concludes that the Trial Chamber did not

 8    find that all the principal perpetrators were JCE members.  Nor did the

 9    Trial Chamber specify which principal perpetrators were JCE members.

10            Accordingly, in light of this understanding inter partes, the

11    Appeals Chamber enters no new convictions under the JCE doctrine.  I

12    should note that Judge Shahabuddeen takes a different view from the

13    majority in regard to certain aspects of the Prosecution's appeal on JCE,

14    and he has filed a partially dissenting opinion to that effect.  I myself

15    have also filed a brief separate opinion outlining my own views with

16    relation to a particular aspect of the Prosecution's appeal.  Judge Van

17    Den Wyngaert has appended a declaration on this issue.

18            In its third ground of appeal, the Prosecution challenges

19    Brdjanin's acquittal for aiding and abetting wilful killings in camps and

20    detention facilities and for his acquittal in relation to certain murders

21    committed by the Mice paramilitary group in Teslic municipality.  The

22    Appeals Chamber dismisses this ground of appeal.  The Prosecution's

23    argument that Brdjanin should be convicted for the killings in the camps

24    and detention facilities relies on the Trial Chamber's reasoning in

25    convicting Brdjanin for aiding and abetting torture in the camps and

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 1    detention facilities.

 2            Since the Appeals Chamber has however concluded that the Trial

 3    Chamber erred in finding Brdjanin responsible for torture

 4    in the camps and detention facilities, the Prosecution's arguments here

 5    cannot succeed.  With regard to Brdjanin's acquittal in relation to the

 6    murders committed by the Mice paramilitary group, the Appeals Chamber

 7    concludes that the Prosecution failed to show that no reasonable

 8    fact-finder could have reached a verdict of acquittal.

 9            In ground 4 of its appeal, the Prosecution challenges Brdjanin's

10    acquittal with regard to the charge of aiding and abetting the crime of

11    extermination.  The Appeals Chamber dismisses this ground, too.  The

12    Appeals Chamber does agree with the Prosecution that the Trial Chamber was

13    unreasonable in failing to find that the principal perpetrators at the

14    locations of four specific large-scale killings had the requisite mens rea

15    for the crime of extermination.  Nonetheless, the Appeals Chamber sees no

16    adequate basis for disturbing the Trial Chamber's finding that Brdjanin

17    himself did not know that extermination would be committed in the ARK.

18            Finally, the parties make no meritorious arguments with regard to

19    sentencing that are independent of their arguments with regard to the

20    convictions and the acquittals.  Accordingly, I will not discuss issues

21    specific to sentencing further.

22            Since the Appeals Chamber has reversed certain convictions, it has

23    reduced the sentence given to Brdjanin.  However, in light of the relative

24    gravity of the crimes for which Brdjanin's convictions have been

25    overturned and that of the crimes for which Brdjanin's convictions have

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 1    been upheld, as well as the relevant aggravating and mitigating

 2    circumstances, this reduction has been quite limited.

 3            I will now read the disposition of the Appeals Chamber judgement.

 4    Mr. Brdjanin, will you please stand?

 5            For the foregoing reasons the Appeals Chamber, pursuant to Article

 6    25 of the Statute and Rules 117 and 118 of the Rules, noting the

 7    respective written submissions of the parties and the arguments they

 8    presented at the hearings of 7 and 8 December, 2006, sitting in open

 9    session, allows Brdjanin's appeal in part, and reverses Brdjanin's

10    conviction under Count 3 (persecution as a crime against humanity),

11    insofar as it incorporates torture as a crime against humanity committed

12    in camps and detention facilities (Count 6); reverses Brdjanin's

13    conviction under Count 7 (torture as a grave breach of the Geneva

14    Conventions of 1949) with respect to torture committed in camps and

15    detention facilities only; reverses Brdjanin's conviction under Count 11

16    (wanton destruction of cities, towns, or villages, or devastation not

17    justified by military necessity as a violation of the laws or customs of

18    war) with respect to the municipality of Bosanska Krupa only; dismisses

19    Brdjanin's remaining grounds of appeal; allows ground 1, Judge

20    Shahabuddeen dissenting in part, and ground 2 of the Prosecution's appeal,

21    but for the reasons given in the judgement, does not modify Brdjanin's

22    convictions in relation thereto; dismisses grounds 3 and 4 of the

23    Prosecution's appeal; notes that ground 5 of the Prosecution's appeal was

24    withdrawn; imposes a new sentence of 30 years of imprisonment, subject to

25    credit being given under Rule 101 (C) of the Rules for the period Brdjanin

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 1    has spent in detention; orders that, in accordance with Rule 103(C) and

 2    107 of the Rules, Brdjanin is to remain in the custody of the Tribunal

 3    pending the finalisation of arrangements for his transfer to the State in

 4    which his sentence will be served.

 5            Judge Christine Van Den Wyngaert appends a declaration.

 6            Judge Theodore Meron appends a separate opinion.

 7            Judge Mohamed Shahabuddeen appends a partially dissenting opinion.

 8            Mr. Brdjanin, you may be seated.

 9            Mr. Registrar, would you please distribute copies of the judgement

10    to the parties.

11            Thank you.  This concludes the hearing.  The Appeals Chamber

12    stands adjourned.

13                           --- Whereupon the hearing adjourned at 2.37 p.m.