Case No: IT-98-33-A

Before:
Judge Theodor Meron, Presiding
Judge Fausto Pocar
Judge Mohamed Shahabuddeen
Judge Mehmet Güney
Judge Wolfgang Schomburg

Registrar:
Mr. Hans Holthuis

Judgement:
19 April 2004

Counsel for the Prosecution:

Mr. Norman Farrell
Mr. Mathias Marcussen
Ms. Magda Karagiannakis
Mr. Xavier Tracol
Mr. Dan Moylan

Counsel for the Defendant:

Mr. Nenad Petrusic
Mr. Norman Sepenuk

I. INTRODUCTION
1. The Appeals Chamber of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991 is seised of two appeals from the written Judgement rendered by the Trial Chamber on 2 August 2001 in the case of Prosecutor v. Radislav Krstic, Case No. IT-98-33-T (“Trial Judgement”). Having considered the written and oral submissions of the Prosecution and the Defence, the Appeals Chamber hereby renders its Judgement.

2. Srebrenica is located in eastern Bosnia and Herzegovina. It gave its name to a United Nations so-called safe area, which was intended as an enclave of safety set up to protect its civilian population from the surrounding war. Since July 1995, however, Srebrenica has also lent its name to an event the horrors of which form the background to this case. The depravity, brutality and cruelty with which the Bosnian Serb Army (“VRS”) treated the innocent inhabitants of the safe area are now well known and documented.¹ Bosnian women, children and elderly were removed from the enclave,² and between 7,000 – 8,000 Bosnian Muslim men were systematically murdered.³

3. Srebrenica is located in the area for which the Drina Corps of the VRS was responsible. Radislav Krstic was a General-Major in the VRS and Commander of the Drina Corps at the time the crimes at issue were committed. For his involvement in these events, the Trial Chamber found Radislav Krstic guilty of genocide; persecution through murders, cruel and inhumane treatment, terrorising the civilian population, forcible transfer and destruction of personal property; and murder as a violation of the laws or customs of war. Radislav Krstic was sentenced to forty-six years of imprisonment.

4. For ease of reference, two annexes are appended to this Judgement. Annex A contains a Procedural Background, detailing the progress of this appeal. Annex B contains a Glossary of Terms, which provides references to and definitions of citations and terms used in this Judgement.
   II. THE TRIAL CHAMBER’S FINDING THAT GENOCIDE OCCURRED IN SREBRENICA

5. The Defence appeals Radislav Krstic’s conviction for genocide committed against Bosnian Muslims in Srebrenica. The Defence argues that the Trial Chamber both misconstrued the legal definition of genocide and erred in applying the definition to the circumstances of this case.⁴ With respect to the legal challenge, the Defence’s argument is two-fold. First, Krstic contends that the Trial Chamber’s definition of the part of the national group he was found to have intended to destroy was unacceptably narrow. Second, the Defence argues that the Trial Chamber erroneously enlarged the term “destroy” in the prohibition of genocide to include the geographical displacement of a community.
   A. The Definition of the Part of the Group

6. Article 4 of the Tribunal’s Statute, like the Genocide Convention,⁵ covers certain acts done with “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.” The Indictment in this case alleged, with respect to the count of genocide, that Radislav Krstic “intend[ed] to destroy a part of the Bosnian Muslim people as a national, ethnical, or religious group.”⁶ The targeted group identified in the Indictment, and accepted by the Trial Chamber, was that of the Bosnian Muslims.⁷ The Trial Chamber determined that the Bosnian Muslims were a specific, distinct national group, and therefore covered by Article 4.⁸ This conclusion is not challenged in this appeal.⁹

7. As is evident from the Indictment, Krstic was not alleged to have intended to destroy the entire national group of Bosnian Muslims, but only a part of that group. The first question presented in this appeal is whether, in finding that Radislav Krstic had genocidal intent, the Trial Chamber defined the relevant part of the Bosnian Muslim group in a way which comports with the requirements of Article 4 and of the Genocide Convention.

8. It is well established that where a conviction for genocide relies on the intent to destroy a protected group “in part,” the part must be a substantial part of that group. The aim of the Genocide Convention is to prevent the intentional destruction of entire human groups, and the part targeted must be significant enough to have an impact on the group as a whole. Although the Appeals Chamber has not yet addressed this issue, two Trial Chambers of this Tribunal have examined it. In Jelisic, the first case to confront the question, the Trial Chamber noted that, “[g]iven the goal of the [Genocide] Convention to deal with mass crimes, it is widely acknowledged that the intention to destroy must target at least a substantial part of the group.”¹⁰ The same conclusion was reached by the Sikirica Trial Chamber: “This part of the definition calls for evidence of an intention to destroy a substantial number relative to the total population of the group.”¹¹ As these Trial Chambers explained, the substantiality requirement both captures genocide’s defining character as a crime of massive proportions and reflects the Convention’s concern with the impact the destruction of the targeted part will have on the overall survival of the group.¹²

9. The question has also been considered by Trial Chambers of the ICTR, whose Statute contains an identical definition of the crime of genocide.¹³ These Chambers arrived at the same conclusion. In Kayishema, the Trial Chamber concluded, after having canvassed the authorities interpreting the Genocide Convention, that the term “‘in part’ requires the intention to destroy a considerable number of individuals who are part of the group.”¹⁴ This definition was accepted and refined by the Trial Chambers in Bagilishema and Semanza, which stated that the intent to destroy must be, at least, an intent to destroy a substantial part of the group.¹⁵

10. This interpretation is supported by scholarly opinion. The early commentators on the Genocide Convention emphasized that the term “in part” contains a substantiality requirement. Raphael Lemkin, a prominent international criminal lawyer who coined the term “genocide” and was instrumental in the drafting of the Genocide Convention, addressed the issue during the 1950 debate in the United States Senate on the ratification of the Convention. Lemkin explained that “the destruction in part must be of a substantial nature so as to affect the entirety.”¹⁶ He further suggested that the Senate clarify, in a statement of understanding to accompany the ratification, that “the Convention applies only to actions undertaken on a mass scale.”¹⁷ Another noted early commentator, Nehemiah Robinson, echoed this view, explaining that a perpetrator of genocide must possess the intent to destroy a substantial number of individuals constituting the targeted group.¹⁸ In discussing this requirement, Robinson stressed, as did Lemkin, that “the act must be directed toward the destruction of a group,” this formulation being the aim of the Convention.¹⁹

11. Recent commentators have adhered to this view. The International Law Commission, charged by the UN General Assembly with the drafting of a comprehensive code of crimes prohibited by international law, stated that “the crime of genocide by its very nature requires the intention to destroy at least a substantial part of a particular group.”²⁰ The same interpretation was adopted earlier by the 1985 report of Benjamin Whitaker, the Special Rapporteur to the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities.²¹

12. The intent requirement of genocide under Article 4 of the Statute is therefore satisfied where evidence shows that the alleged perpetrator intended to destroy at least a substantial part of the protected group. The determination of when the targeted part is substantial enough to meet this requirement may involve a number of considerations. The numeric size of the targeted part of the group is the necessary and important starting point, though not in all cases the ending point of the inquiry. The number of individuals targeted should be evaluated not only in absolute terms, but also in relation to the overall size of the entire group. In addition to the numeric size of the targeted portion, its prominence within the group can be a useful consideration. If a specific part of the group is emblematic of the overall group, or is essential to its survival, that may support a finding that the part qualifies as substantial within the meaning of Article 4.²²

13. The historical examples of genocide also suggest that the area of the perpetrators’ activity and control, as well as the possible extent of their reach, should be considered. Nazi Germany may have intended only to eliminate Jews within Europe alone; that ambition probably did not extend, even at the height of its power, to an undertaking of that enterprise on a global scale. Similarly, the perpetrators of genocide in Rwanda did not seriously contemplate the elimination of the Tutsi population beyond the country’s borders.²³ The intent to destroy formed by a perpetrator of genocide will always be limited by the opportunity presented to him. While this factor alone will not indicate whether the targeted group is substantial, it can - in combination with other factors - inform the analysis.

14. These considerations, of course, are neither exhaustive nor dispositive. They are only useful guidelines. The applicability of these factors, as well as their relative weight, will vary depending on the circumstances of a particular case.

15. In this case, having identified the protected group as the national group of Bosnian Muslims, the Trial Chamber concluded that the part the VRS Main Staff and Radislav Krstic targeted was the Bosnian Muslims of Srebrenica, or the Bosnian Muslims of Eastern Bosnia.²⁴ This conclusion comports with the guidelines outlined above. The size of the Bosnian Muslim population in Srebrenica prior to its capture by the VRS forces in 1995 amounted to approximately forty thousand people.²⁵ This represented not only the Muslim inhabitants of the Srebrenica municipality but also many Muslim refugees from the surrounding region.²⁶ Although this population constituted only a small percentage of the overall Muslim population of Bosnia and Herzegovina at the time, the importance of the Muslim community of Srebrenica is not captured solely by its size.²⁷ As the Trial Chamber explained, Srebrenica (and the surrounding Central Podrinje region) were of immense strategic importance to the Bosnian Serb leadership. Without Srebrenica, the ethnically Serb state of Republica Srpska they sought to create would remain divided into two disconnected parts, and its access to Serbia proper would be disrupted.²⁸ The capture and ethnic purification of Srebrenica would therefore severely undermine the military efforts of the Bosnian Muslim state to ensure its viability, a consequence the Muslim leadership fully realized and strove to prevent. Control over the Srebrenica region was consequently essential to the goal of some Bosnian Serb leaders of forming a viable political entity in Bosnia, as well as to the continued survival of the Bosnian Muslim people. Because most of the Muslim inhabitants of the region had, by 1995, sought refuge within the Srebrenica enclave, the elimination of that enclave would have accomplished the goal of purifying the entire region of its Muslim population.

16. In addition, Srebrenica was important due to its prominence in the eyes of both the Bosnian Muslims and the international community. The town of Srebrenica was the most visible of the “safe areas” established by the UN Security Council in Bosnia. By 1995 it had received significant attention in the international media. In its resolution declaring Srebrenica a safe area, the Security Council announced that it “should be free from armed attack or any other hostile act.”²⁹ This guarantee of protection was re-affirmed by the commander of the UN Protection Force in Bosnia (UNPROFOR) and reinforced with the deployment of UN troops.³⁰ The elimination of the Muslim population of Srebrenica, despite the assurances given by the international community, would serve as a potent example to all Bosnian Muslims of their vulnerability and defenselessness in the face of Serb military forces. The fate of the Bosnian Muslims of Srebrenica would be emblematic of that of all Bosnian Muslims.

17. Finally, the ambit of the genocidal enterprise in this case was limited to the area of Srebrenica. While the authority of the VRS Main Staff extended throughout Bosnia, the authority of the Bosnian Serb forces charged with the take-over of Srebrenica did not extend beyond the Central Podrinje region. From the perspective of the Bosnian Serb forces alleged to have had genocidal intent in this case, the Muslims of Srebrenica were the only part of the Bosnian Muslim group within their area of control.

18. In fact, the Defence does not argue that the Trial Chamber’s characterization of the Bosnian Muslims of Srebrenica as a substantial part of the targeted group contravenes Article 4 of the Tribunal’s Statute. Rather, the Defence contends that the Trial Chamber made a further finding, concluding that the part Krstic intended to destroy was the Bosnian Muslim men of military age of Srebrenica.³¹ In the Defence’s view, the Trial Chamber then engaged in an impermissible sequential reasoning, measuring the latter part of the group against the larger part (the Bosnian Muslims of Srebrenica) to find the substantiality requirement satisfied.³² The Defence submits that if the correct approach is properly applied, and the military age men are measured against the entire group of Bosnian Muslims, the substantiality requirement would not be met.³³

19. The Defence misunderstands the Trial Chamber’s analysis. The Trial Chamber stated that the part of the group Radislav Krstic intended to destroy was the Bosnian Muslim population of Srebrenica.³⁴ The men of military age, who formed a further part of that group, were not viewed by the Trial Chamber as a separate, smaller part within the meaning of Article 4. Rather, the Trial Chamber treated the killing of the men of military age as evidence from which to infer that Radislav Krstic and some members of the VRS Main Staff had the requisite intent to destroy all the Bosnian Muslims of Srebrenica, the only part of the protected group relevant to the Article 4 analysis.

20. In support of its argument, the Defence identifies the Trial Chamber’s determination that, in the context of this case, “the intent to kill the men (of military age( amounted to an intent to destroy a substantial part of the Bosnian Muslim group.”³⁵ The Trial Chamber’s observation was proper. As a specific intent offense, the crime of genocide requires proof of intent to commit the underlying act and proof of intent to destroy the targeted group, in whole or in part. The proof of the mental state with respect to the commission of the underlying act can serve as evidence from which the fact-finder may draw the further inference that the accused possessed the specific intent to destroy.

21. The Trial Chamber determined that Radislav Krstic had the intent to kill the Srebrenica Bosnian Muslim men of military age. This finding is one of intent to commit the requisite genocidal act – in this case, the killing of the members of the protected group, prohibited by Article 4(2)(a) of the Statute. From this intent to kill, the Trial Chamber also drew the further inference that Krstic shared the genocidal intent of some members of the VRS Main Staff to destroy a substantial part of the targeted group, the Bosnian Muslims of Srebrenica.

22. It must be acknowledged that in portions of its Judgement, the Trial Chamber used imprecise language which lends support to the Defence’s argument.³⁶ The Trial Chamber should have expressed its reasoning more carefully. As explained above, however, the Trial Chamber’s overall discussion makes clear that it identified the Bosnian Muslims of Srebrenica as the substantial part in this case.

23. The Trial Chamber’s determination of the substantial part of the protected group was correct. The Defence’s appeal on this issue is dismissed.
    B. The Determination of the Intent to Destroy

24. The Defence also argues that the Trial Chamber erred in describing the conduct with which Radislav Krstic is charged as genocide. The Trial Chamber, the Defence submits, impermissibly broadened the definition of genocide by concluding that an effort to displace a community from its traditional residence is sufficient to show that the alleged perpetrator intended to destroy a protected group.³⁷ By adopting this approach, the Defence argues, the Trial Chamber departed from the established meaning of the term genocide in the Genocide Convention - as applying only to instances of physical or biological destruction of a group - to include geographic displacement.³⁸

25. The Genocide Convention, and customary international law in general, prohibit only the physical or biological destruction of a human group.³⁹ The Trial Chamber expressly acknowledged this limitation, and eschewed any broader definition. The Chamber stated: “(C(ustomary international law limits the definition of genocide to those acts seeking the physical or biological destruction of all or part of the group. (A(n enterprise attacking only the cultural or sociological characteristics of a human group in order to annihilate these elements which give to that group its own identity distinct from the rest of the community would not fall under the definition of genocide.”⁴⁰

26. Given that the Trial Chamber correctly identified the governing legal principle, the Defence must discharge the burden of persuading the Appeals Chamber that, despite having correctly stated the law, the Trial Chamber erred in applying it. The main evidence underlying the Trial Chamber’s conclusion that the VRS forces intended to eliminate all the Bosnian Muslims of Srebrenica was the massacre by the VRS of all men of military age from that community.⁴¹ The Trial Chamber rejected the Defence’s argument that the killing of these men was motivated solely by the desire to eliminate them as a potential military threat.⁴² The Trial Chamber based this conclusion on a number of factual findings, which must be accepted as long as a reasonable Trial Chamber could have arrived at the same conclusions. The Trial Chamber found that, in executing the captured Bosnian Muslim men, the VRS did not differentiate between men of military status and civilians.⁴³ Though civilians undoubtedly are capable of bearing arms, they do not constitute the same kind of military threat as professional soldiers. The Trial Chamber was therefore justified in drawing the inference that, by killing the civilian prisoners, the VRS did not intend only to eliminate them as a military danger. The Trial Chamber also found that some of the victims were severely handicapped and, for that reason, unlikely to have been combatants.⁴⁴ This evidence further supports the Trial Chamber’s conclusion that the extermination of these men was not driven solely by a military rationale.

27. Moreover, as the Trial Chamber emphasized, the term “men of military age” was itself a misnomer, for the group killed by the VRS included boys and elderly men normally considered to be outside that range.⁴⁵ Although the younger and older men could still be capable of bearing arms, the Trial Chamber was entitled to conclude that they did not present a serious military threat, and to draw a further inference that the VRS decision to kill them did not stem solely from the intent to eliminate them as a threat. The killing of the military aged men was, assuredly, a physical destruction, and given the scope of the killings the Trial Chamber could legitimately draw the inference that their extermination was motivated by a genocidal intent.

28. The Trial Chamber was also entitled to consider the long-term impact that the elimination of seven to eight thousand men from Srebrenica would have on the survival of that community. In examining these consequences, the Trial Chamber properly focused on the likelihood of the community’s physical survival. As the Trial Chamber found, the massacred men amounted to about one fifth of the overall Srebrenica community.⁴⁶ The Trial Chamber found that, given the patriarchal character of the Bosnian Muslim society in Srebrenica, the destruction of such a sizeable number of men would “inevitably result in the physical disappearance of the Bosnian Muslim population at Srebrenica.”⁴⁷ Evidence introduced at trial supported this finding, by showing that, with the majority of the men killed officially listed as missing, their spouses are unable to remarry and, consequently, to have new children.⁴⁸ The physical destruction of the men therefore had severe procreative implications for the Srebrenica Muslim community, potentially consigning the community to extinction.

29. This is the type of physical destruction the Genocide Convention is designed to prevent. The Trial Chamber found that the Bosnian Serb forces were aware of these consequences when they decided to systematically eliminate the captured Muslim men.⁴⁹ The finding that some members of the VRS Main Staff devised the killing of the male prisoners with full knowledge of the detrimental consequences it would have for the physical survival of the Bosnian Muslim community in Srebrenica further supports the Trial Chamber’s conclusion that the instigators of that operation had the requisite genocidal intent.

30. The Defence argues that the VRS decision to transfer, rather than to kill, the women and children of Srebrenica in their custody undermines the finding of genocidal intent.⁵⁰ This conduct, the Defence submits, is inconsistent with the indiscriminate approach that has characterized all previously recognized instances of modern genocide.⁵¹

31. The decision by Bosnian Serb forces to transfer the women, children and elderly within their control to other areas of Muslim-controlled Bosnia could be consistent with the Defence argument. This evidence, however, is also susceptible of an alternative interpretation. As the Trial Chamber explained, forcible transfer could be an additional means by which to ensure the physical destruction of the Bosnian Muslim community in Srebrenica. The transfer completed the removal of all Bosnian Muslims from Srebrenica, thereby eliminating even the residual possibility that the Muslim community in the area could reconstitute itself.⁵² The decision not to kill the women or children may be explained by the Bosnian Serbs’ sensitivity to public opinion. In contrast to the killing of the captured military men, such an action could not easily be kept secret, or disguised as a military operation, and so carried an increased risk of attracting international censure.

32. In determining that genocide occurred at Srebrenica, the cardinal question is whether the intent to commit genocide existed. While this intent must be supported by the factual matrix, the offence of genocide does not require proof that the perpetrator chose the most efficient method to accomplish his objective of destroying the targeted part. Even where the method selected will not implement the perpetrator’s intent to the fullest, leaving that destruction incomplete, this ineffectiveness alone does not preclude a finding of genocidal intent. The international attention focused on Srebrenica, combined with the presence of the UN troops in the area, prevented those members of the VRS Main Staff who devised the genocidal plan from putting it into action in the most direct and efficient way. Constrained by the circumstances, they adopted the method which would allow them to implement the genocidal design while minimizing the risk of retribution.

33. The Trial Chamber - as the best assessor of the evidence presented at trial - was entitled to conclude that the evidence of the transfer supported its finding that some members of the VRS Main Staff intended to destroy the Bosnian Muslims in Srebrenica. The fact that the forcible transfer does not constitute in and of itself a genocidal act⁵³ does not preclude a Trial Chamber from relying on it as evidence of the intentions of members of the VRS Main Staff. The genocidal intent may be inferred, among other facts, from evidence of “other culpable acts systematically directed against the same group.”⁵⁴

34. The Defence also argues that the record contains no statements by members of the VRS Main Staff indicating that the killing of the Bosnian Muslim men was motivated by genocidal intent to destroy the Bosnian Muslims of Srebrenica.⁵⁵ The absence of such statements is not determinative. Where direct evidence of genocidal intent is absent, the intent may still be inferred from the factual circumstances of the crime.⁵⁶ The inference that a particular atrocity was motivated by genocidal intent may be drawn, moreover, even where the individuals to whom the intent is attributable are not precisely identified. If the crime committed satisfies the other requirements of genocide, and if the evidence supports the inference that the crime was motivated by the intent to destroy, in whole or in part, a protected group, a finding that genocide has occurred may be entered.

35. In this case, the factual circumstances, as found by the Trial Chamber, permit the inference that the killing of the Bosnian Muslim men was done with genocidal intent. As already explained, the scale of the killing, combined with the VRS Main Staff’s awareness of the detrimental consequences it would have for the Bosnian Muslim community of Srebrenica and with the other actions the Main Staff took to ensure that community’s physical demise, is a sufficient factual basis for the finding of specific intent. The Trial Chamber found, and the Appeals Chamber endorses this finding, that the killing was engineered and supervised by some members of the Main Staff of the VRS.⁵⁷ The fact that the Trial Chamber did not attribute genocidal intent to a particular official within the Main Staff may have been motivated by a desire not to assign individual culpability to persons not on trial here. This, however, does not undermine the conclusion that Bosnian Serb forces carried out genocide against the Bosnian Muslims.

36. Among the grievous crimes this Tribunal has the duty to punish, the crime of genocide is singled out for special condemnation and opprobrium. The crime is horrific in its scope; its perpetrators identify entire human groups for extinction. Those who devise and implement genocide seek to deprive humanity of the manifold richness its nationalities, races, ethnicities and religions provide. This is a crime against all of humankind, its harm being felt not only by the group targeted for destruction, but by all of humanity.

37. The gravity of genocide is reflected in the stringent requirements which must be satisfied before this conviction is imposed. These requirements – the demanding proof of specific intent and the showing that the group was targeted for destruction in its entirety or in substantial part – guard against a danger that convictions for this crime will be imposed lightly. Where these requirements are satisfied, however, the law must not shy away from referring to the crime committed by its proper name. By seeking to eliminate a part of the Bosnian Muslims, the Bosnian Serb forces committed genocide. They targeted for extinction the forty thousand Bosnian Muslims living in Srebrenica, a group which was emblematic of the Bosnian Muslims in general. They stripped all the male Muslim prisoners, military and civilian, elderly and young, of their personal belongings and identification, and deliberately and methodically killed them solely on the basis of their identity. The Bosnian Serb forces were aware, when they embarked on this genocidal venture, that the harm they caused would continue to plague the Bosnian Muslims. The Appeals Chamber states unequivocally that the law condemns, in appropriate terms, the deep and lasting injury inflicted, and calls the massacre at Srebrenica by its proper name: genocide. Those responsible will bear this stigma, and it will serve as a warning to those who may in future contemplate the commission of such a heinous act.

38. In concluding that some members of the VRS Main Staff intended to destroy the Bosnian Muslims of Srebrenica, the Trial Chamber did not depart from the legal requirements for genocide. The Defence appeal on this issue is dismissed.
    III. ALLEGED FACTUAL ERRORS RELATING TO JOINT CRIMINAL ENTERPRISE TO COMMIT GENOCIDE

39. As already stated, the crime of genocide was committed at Srebrenica in July 1995, a determination which the Trial Chamber correctly made. The Defence argues, however, that even if the finding of genocide was correct, the Trial Chamber erred in finding the evidence sufficient to establish that Radislav Krstic was a member of a joint criminal enterprise to commit genocide.⁵⁸

40. It is well established that the Appeals Chamber will not lightly overturn findings of fact made by a Trial Chamber.⁵⁹ Where the Defence alleges an erroneous finding of fact, the Appeals Chamber must give deference to the Trial Chamber that received the evidence at trial, and it will only interfere in those findings where no reasonable trier of fact could have reached the same finding or where the finding is wholly erroneous.⁶⁰ Furthermore, the erroneous finding will be revoked or revised only if the error occasioned a miscarriage of justice.⁶¹

41. The Appeals Chamber has taken the view that, when the Prosecution relies upon proof of a state of mind of an accused by inference, that inference must be the only reasonable inference available on the evidence.⁶²

42. The Trial Chamber based its conclusion that Radislav Krstic shared the intent of a joint criminal enterprise to commit genocide on inferences drawn from its findings with respect to his knowledge about the situation facing the Bosnian Muslim civilians after the take-over of Srebrenica, his interaction with the main participants of the joint criminal enterprise, and the evidence it accepted as establishing that resources and soldiers under his command and control were used to facilitate the killings. Relying on this evidence, the Trial Chamber held that, from the evening of 13 July 1995, Radislav Krstic intentionally participated in the joint criminal enterprise to execute the Bosnian Muslims of Srebrenica.⁶³

43. In attacking this conclusion, the Defence advances three arguments. First, the Defence challenges the Trial Chamber’s finding that Radislav Krstic assumed effective command over the Drina Corps and Drina Corps assets on 13 July 1995, and not later.⁶⁴ Secondly, the Defence contests the Trial Chamber’s rejection of its argument that a parallel chain of command, running from the Main Staff of the VRS through the security organs of the Drina Corps, excluded Radislav Krstic from participation in (and even knowledge of) the executions.⁶⁵ Thirdly, the Defence challenges the finding of the Trial Chamber that Krstic directly participated in the executions and argues that, even if the evidence before the Trial Chamber is sufficient to establish knowledge on his part about the genocide committed in Srebrenica, it is not sufficient to establish that he intended to commit genocide.⁶⁶

44. As a final, additional argument, the Defence submits that Radislav Krstic could not reasonably have foreseen the commission of the opportunistic crimes at Potocari on 12 and 13 July 1995, and that the crimes were not a natural and foreseeable consequence of the ethnic cleansing campaign.⁶⁷ The Appeals Chamber will consider the first three of these arguments, and will then detail its analysis of Krstic’s criminal liability in light of its findings, before considering the final, additional argument.
    A. The Trial Chamber’s finding as to the date on which Radislav Krstic assumed command of the Drina Corps

45. The Trial Chamber found that Radislav Krstic became the de facto commander of the Drina Corps on the evening of 13 July 1995, with the formal confirmation of his command following a 15 July 1995 decree issued by President Karadzic.⁶⁸ The Defence challenges this finding, relying on the fact that the Presidential Decree appointing him as Corps Commander provided that the appointment was to take effect only on 15 July.⁶⁹ The Defence also relies on the fact that the VRS formalities, which had to be completed prior to the transfer of the command, were not completed until 20 July,⁷⁰ and on the evidence showing that General Zivanovic retained command until that date.⁷¹

46. The arguments the Defence now puts forward were extensively considered by the Trial Chamber. The Chamber, relying on eye-witness and documentary evidence, found that despite the date specified by the decree, the transfer of command to Radislav Krstic took place on 13 July. In support of its finding, the Trial Chamber relied, for example, on the evidence that a formal ceremony, attended by the officers of the Drina Corps at Vlasenica Headquarters, at which General Mladic conferred the command on Krstic, took place on 13 July.⁷² The Trial Chamber also concluded that the exigencies of war may have necessitated dispensation with the formal procedures for the transfer of the command.⁷³ The Trial Chamber considered the evidence of General Zivanovic’s continued role in the Drina Corps and found that that evidence was outweighed by the evidence that Krstic assumed and began to exercise command on 13 July 1995.⁷⁴ The Trial Chamber’s conclusion is further supported by the combat report dated 13  July, and signed by Radislav Krstic as the Commander, which the Prosecution presented in this Appeal as additional evidence.⁷⁵

47. The conclusions of the Trial Chamber are entirely reasonable and supported by ample evidence. The Defence has failed to demonstrate any error on the part of the Trial Chamber, much less that the finding was one that no reasonable Trial Chamber could have reached.
    B. The Trial Chamber’s rejection of the Defence of Parallel Chain of Command

48. The Defence next argues that the Trial Chamber erred in rejecting its claim that the executions were ordered and supervised through a parallel chain of command maintained by the VRS security forces, over which Radislav Krstic did not have control. According to the Defence, this chain of command originated with General Mladic, went through his Security Commander, Colonel Beara of the VRS Main Staff, to Colonel Popovic of the Drina Corps and finally to the Zvornik Brigade Security Officer, Dragan Nikolic.⁷⁶ Acting through this parallel chain of command, the Defence submits, the Main Staff of the VRS could and did commandeer Drina Corps assets without consulting the Drina Corps Command.⁷⁷

49. The Defence’s argument is an exact repetition of the argument it presented at trial. This argument was fully considered by the Trial Chamber. The Trial Chamber acknowledged that General Mladic exercised some control over the Drina Corps within its zone of responsibility. The Chamber concluded, however, that the evidence could not support a finding that the Drina Corps command was completely excluded from all knowledge or authority with respect to the involvement of its troops and assets in the execution of the Bosnian Muslim civilians.⁷⁸
    1. The Trial Chamber’s finding that the Main Staff of the VRS and the MUP forces subordinate to it received co-operation from Radislav Krstic and the Drina Corps

    (a) The treatment of prisoners

50. The Defence argues, as it did at trial, that the Trial Chamber erred in finding that the Main Staff of the VRS and the MUP forces subordinate to it received co- operation from Radislav Krstic and the Drina Corps in carrying out the executions. The Defence relies on an order issued on 13 July 1995 by General Gvero, the Assistant Commander of the Main Staff, directing that the “Superior Command” be immediately informed as to the location where the prisoners were taken. The Defence argues that this order shows that the Main Staff assumed responsibility for the prisoners.⁷⁹ The Defence also relies on General Mladic’s statement to the prisoners held at Sandici Meadow and Nova Kasaba that General Mladic was personally making arrangements for their exchange or transportation.⁸⁰ Finally, the Defence relies on the fact that the Trial Chamber was unable to conclude beyond reasonable doubt that the Drina Corps had participated in the capture of the prisoners.⁸¹

51. As the Trial Chamber explained, however, General Gvero’s order was issued to the Drina Corps Command and the relevant subordinate Brigades,⁸² and therefore constitutes strong evidence that the Drina Corps knew about the capture of the prisoners and acted in “close co-ordination and co-operation” with the MUP units.⁸³ The Trial Chamber also considered the appearance of General Mladic and his address to the prisoners at Sandici Meadow and Nova Kosaba. These actions were consistent with General Mladic’s position as the Commander of all VRS forces, including the Drina Corps, and do not support an inference that subordinate commanders, such as Krstic, were excluded from the normal military chain of command.⁸⁴ The absence of a finding by the Trial Chamber that the Drina Corps participated in the capture of the prisoners is similarly inapposite. Relying on considerable evidence, the Trial Chamber established that the Drina Corps and Radislav Krstic knew that thousands of Bosnian Muslim prisoners had been captured on 13 July 1995, and continued to be informed about their situation.⁸⁵

52. In advancing a similar argument with respect to the execution of the prisoners, the Defence points to the fact that these executions were conducted by the 10th Sabotage Detachment of the Main Staff, with General Mladic appearing at the execution site at Orahovac.⁸⁶ The Defence also relies on an intercepted conversation of 13 July 1995, in which General Zivanovic, the General-Major in command of the Drina Corps before Radislav Krstic, expressed concern about identifying war criminals among the prisoners. This conversation, the Defence submits, shows that even General  Zivanovic was unaware that the prisoners were being executed.⁸⁷

53. As further evidence of the Drina Corps Command’s non-involvement, the Defence quotes from an intercepted conversation of 17 July 1995, during which Radislav Krstic asked a subordinate: “On whose approval did you send soldiers down there?” The answer was: “On orders from the Main Staff.”⁸⁸ The Defence also points to the order of 17 July 1995 issued by General Mladic to the Zvornik Brigade, which stated that personnel from the Main Staff would be “responsible for command of the forces carrying out the task.”⁸⁹ Finally, the Defence relies on combat reports of Colonel Pandurevic, the Zvornik Brigade Commander, in which Colonel Pandurevic complained that the placement of the prisoners in the zone of his Brigade created a great burden, and he threatened to have them released.⁹⁰ These reports, the Defence argues, show that Colonel Pandurevic was unaware that the Main Staff had already arranged for the prisoners to be executed.⁹¹

54. The evidence on which the Defence relies was considered by the Trial Chamber when it analysed the respective involvement of the Main Staff and the Drina Corps Command in the capture and detention of the Bosnian Muslim prisoners.⁹² The Trial Chamber accepted that the evidence demonstrated that the Main Staff was “heavily involved in the direction of events following the take over of Srebrenica,” and that there were “indications that Drina Corps units were not always informed or consulted about what the Main Staff was doing in their area of concern during the week following 11 July.”⁹³ The Trial Chamber found, however, that the evidence made it “abundantly clear that the Main Staff could not, and did not, handle the entire Srebrenica follow-up operation on its own and at almost every stage had to, and did, call upon Drina Corps resources for assistance.”⁹⁴ The Defence does not dispute this finding, which the Appeals Chamber accepts.

    (b) The selection of sites

55. The Defence next argues that the selection of sites for the detention of the prisoners, initially in Bratunac, was conducted entirely by the Main Staff with no participation by the Drina Corps. Relying on the vehicle records of the Zvornik Brigade, the Defence argues that contrary to the Trial Chamber’s finding, the Zvornik Brigade did not know that one of its vehicles was being used in this operation.⁹⁵ According to the Defence, the intercepted conversation of 14 July 1995 between the Zvornik Brigade duty officer and Colonel Beara, in which the issue of the captured prisoners was discussed, confirms that Colonel Beara was not following the normal chain of command because he was speaking to the duty officer directly. This, the Defence claims, confirms that the Main Staff could and did utilise Zvornik Brigade assets without going through the Zvornik Brigade Command.⁹⁶

56. Once again, each of the arguments made by the Defence was presented to the Trial Chamber. The Trial Chamber found that the Zvornik Brigade must have known the purpose for which the vehicle was being used, as vehicle records established that it was operated by members of the Zvornik Brigade military police.⁹⁷ The intercept of 14 July, on which the Defence relies, does not undermine this finding or otherwise support the Defence’s argument. Although the Trial Chamber did not conclude that the Drina Corps Command was directly involved in making the arrangements to detain the men at Bratunac, it concluded that the Drina Corps was aware that those men were being so detained.⁹⁸ This finding is supported by sufficient evidence, and the Appeals Chamber accepts it.

    (c) Use of Drina Corps resources without the knowledge of Drina Corps Command

57. The Defence’s argument, then, is that even though Drina Corps resources were utilised in the executions, the requisition of these resources was done without the knowledge of the Drina Corps Command. In rejecting this argument, the Trial Chamber relied on the fact that, in accordance with the military principles of the VRS, the Main Staff could not have come into the Drina Corps zone of responsibility and assumed complete control of its assets and personnel without the consent of the Corps Command.⁹⁹ The Trial Chamber also emphasised the involvement of the Drina Corps in the organisation of the buses for the transportation of the Bosnian Muslim civilians, which contradicted the theory that the Main Staff had taken over direct command of subordinate Drina Corps Brigades.¹⁰⁰ As the Trial Chamber explained, the Drina Corps Command was kept informed by the Main Staff about activities within its zone. This was shown, for example, in an intercept of 15 July, in which Colonel Beara made an urgent request to Krstic for assistance and was directed to contact the Commander of the Bratunac Brigade. ¹⁰¹ This evidence, in the Trial Chamber’s estimation, strongly undermined the notion that the Main Staff was directing activities of the Drina Corps subordinate units without consulting the Drina Corps Command.¹⁰²

58. The Defence argues that the Trial Chamber failed to recognise the significance of the Security Service within the VRS, which in accordance with the traditions of Communist Yugoslavia, still operated independently of the traditional chain of command.¹⁰³ In particular, the Defence argues, the VRS security organs were under no obligation to report to the military command but instead reported to the command of their own security service.¹⁰⁴ In this case, that meant Colonel Popovic reporting directly to Colonel Beara while bypassing Krstic. In the Defence’s view, this fact is confirmed by the absence of any intercepted conversations between Colonel Popovic and Krstic during the period of 13-17 July 1995, when Colonel Popovic was assisting Colonel Beara.

59. In support of this argument, the Defence adduced as additional evidence three police reports made by Dragomir Vasic, Chief of the Centre of Public Security at Zvornik, to the Ministry of the Interior (MUP) of Republika Srpska, the Headquarters of the Police Forces in Biljelani, and the Cabinet of Ministers and the Agency of Public Security.¹⁰⁵ In the first report, dated 12 July, Dragomir Vasic stated that the evacuation and transportation of the civilian population of Srebrenica was ongoing, and he provided information on the situation regarding Bosnian Muslim forces and civilians in the area. The second report, dated 13 July 1995, discussed the confrontation between the MUP and the Bosnian Muslim soldiers and stated that the MUP “have no cooperation or assistance from VRS in blocking and annihilation of the huge number of enemy soldiers.” Vasic therefore expected a “great number of problems until the end of the action because MUP is working alone in this action.” The final report, also dated 13 July 1995, documents a meeting held with General Mladic, at which he informed the others attending that the VRS was resuming the Zepa operation and that all other tasks were being yielded to the MUP. These tasks included the evacuation by bus of 15,000 civilians remaining in Srebrenica towards Kladanj, the liquidation of 8,000 Muslim soldiers trapped in the wooded terrain around Konjevic Polje, and ensuring security for all essential facilities in the town of Srebrenica.

60. Lastly, the Defence relies on a statement of a protected witness that Radislav Krstic and the Drina Corps Command were unaware of the activities carried out by military police units of the Zvornik Brigade, and that, in general, the security organs acted for the Main Staff independently of the normal chain of command. The Defence conceded, however, that in light of the witness’s failure to appear at the Appeal hearing to confirm his testimony, little weight could be attached to the statement.¹⁰⁶

61. These reports do indeed lend support to the Defence’s argument that the MUP was acting on its own in carrying out the executions. The Trial Chamber, however, did not disagree. In fact, it expressly refused to “discount the possibility that the execution plan was initially devised by members of the VRS Main Staff without consultation with the Drina Corps command generally and Radislav Krstic in particular,” and that General Mladic may have directed the operation. ¹⁰⁷ As the Trial Chamber emphasised, however, the Main Staff lacked the resources to carry out the executions on its own and therefore had to call on the resources of the Drina Corps. The Trial Chamber found, moreover, that the Drina Corps Command knew about the Main Staff’s requests and about the subsequent use of the Corps’ resources in the executions. The Defence’s challenges to these findings have already been rejected.¹⁰⁸

62. In support of the Trial Chamber’s findings, the Prosecution adduced, as rebuttal material on Appeal, two combat reports of 16 and 18 July 1995, signed by Radislav Krstic as the Commander of the Drina Corps. In both reports, Krstic directed his troops to co-ordinate with the MUP in the blockage and capture of the Bosnian Muslims escaping from the enclave.¹⁰⁹ These reports support the Trial Chamber’s finding that the Drina Corps aided the forces of the MUP in the task of blocking and capturing the escaping Bosnian Muslims, and that they co-ordinated their military efforts with the MUP forces.

63. The Trial Chamber’s rejection of the Defence’s argument as to the parallel chain of command, even when examined in light of the Defence’s additional evidence, is not one that no reasonable trier of fact could have made.
    C. The Trial Chamber’s finding that Radislav Krstic directly participated in the executions

64. As stated above, the Defence challenges the finding of the Trial Chamber that Radislav Krstic directly participated in the executions and argues that, even if the evidence before the Trial Chamber is sufficient to establish knowledge on his part of the genocide committed in Srebrenica, it is not sufficient to establish that he intended to commit genocide.
    1. The Trial Chamber’s conclusions regarding the Bratunac Brigade’s participation in the executions

65. The Defence argues that the Trial Chamber erred in concluding that on 16 July 1995 members of the Bratunac Brigade, a unit of the Drina Corps subordinate to Radislav Krstic, participated in the killings at Branjevo Farm and the Pilica Cultural Dom.¹¹⁰

    (a) The evidence of Drazen Erdemovic

66. The Defence argues that the evidence of Drazen Erdemovic (a member of the 10th Sabotage Brigade who participated in the killings at Branjevo Farm), which formed the crucial factual basis for the Trial Chamber’s conclusion, did not in fact establish that the men participating in the executions were from the Bratunac Brigade instead of simply originating from the town of Bratunac.¹¹¹ The Defence also claims that the Trial Chamber erroneously interpreted an intercept of 16 July 1995 between Colonel Popovic and Mr. Rasic, a duty officer of the Drina Corps, as referring to the deployment of men from the Bratunac Brigade to assist in the executions. In fact, the Defence submits, that intercept referred to their deployment to the front lines of the battle led by Colonel Pandurevic against a column formed of able-bodied civilians and members of the 28th Division, and which took to the woods in an attempt to break through to Bosnian Muslim-held territories to the north of Srebrenica.¹¹² The Defence argues that this interpretation is supported by the Zvornik Brigade Combat Report of 16 July 1995 prepared by Colonel Pandurevic.¹¹³

67. The evidence given by Mr. Erdemovic was that he and other members of his unit, the 10th Sabotage Unit, had received orders relating to the executions on the morning of 16 July 1995. In carrying out those orders, they first stopped at the Zvornik Brigade headquarters. From there, they were accompanied by an unidentified Lieutenant Colonel and two Drina Corps military police officers to the Branjevo Military Farm. After about half an hour, buses of Bosnian Muslim civilians began to arrive escorted by military police officers wearing the insignia of the Drina Corps, who supervised the unloading of the civilians from the buses.¹¹⁴ The executions commenced at 10.00 hours and continued until 15.00 hours. Between 13.00 and 14.00 hours ten soldiers joined Mr. Erdemovic’s unit to assist in the shootings. Once the executions at Branjevo Military Farm were complete, Mr. Erdemovic and other members of his unit refused to carry out further killings and went to a café. The men that had arrived from Bratunac went to the Pilica Dom where they continued with the executions. They arrived in the café after 15-20 minutes and stated that “everything was over.”¹¹⁵

68. With respect to the identification of the men from Bratunac, Mr. Erdemovic’s evidence was that he had heard that they were from Bratunac, they were dressed in VRS uniform and they knew some of the Bosnian Muslim men of Srebrenica, which suggested to him that they were local. Mr. Erdemovic provided no evidence that these men belonged to the Bratunac Brigade, rather than to other military units. In fact, the only man Mr. Erdemovic positively identified from photographs belonged to another military unit, one not commanded by Krstic. As such, the evidence of Mr. Erdemovic is insufficient to establish that the men were from the Bratunac Brigade.

69. The insufficiency of Mr. Erdemovic’s evidence is highlighted by the testimony of the Prosecution military expert, Richard Butler. Correcting evidence he gave during trial, Mr. Butler made clear during the Appeal hearing that Mr. Erdemovic had never said that the men who were sent to assist in the executions were from the Bratunac Brigade, only that they were from the town of Bratunac.¹¹⁶ Mr. Butler also confirmed that one of the men referred to by Mr. Erdemovic was identified as being a member of the Panteri unit from the East Bosnia Corps.¹¹⁷ In light of this fact, Mr. Butler now concluded that the men that arrived to assist in the executions did not belong to the Bratunac Brigade.¹¹⁸

70. In light of the above, the Appeals Chamber finds that the Trial Chamber’s conclusion that the men of the Bratunac Brigade participated in the executions at Branjevo Farm and the Pilica Dom on 16 July 1995 is not one that a reasonable trier of fact could have made. There was no direct evidence to establish the involvement of the Drina Corps in carrying out these executions.

    (b) The Zvornik Brigade Report

71. The Trial Chamber also based its finding that the men participating in the executions were from the Bratunac Brigade on a Zvornik Brigade Report of 16 July 1995, which stated that, in addition to the regular troops of the Zvornik Brigade forces, two platoons from the Bratunac Brigade were operating under its command.¹¹⁹ This evidence, however, can only establish that platoons from the Bratunac Brigade were operating under the command of the Zvornik Brigade; it does not establish the involvement of those troops in the executions. In fact, the Trial Chamber only relied upon this evidence to establish that Bratunac troops were in the vicinity at that time in order to corroborate the evidence given by Mr. Erdemovic.¹²⁰

    (c) The Trial Chamber’s findings with respect to certain intercepts

    (i) The intercept of 16 July 1995

72. The Trial Chamber also relied on an intercepted conversation of 16 July 1995, in which Colonel Popovic asked to be connected to Radislav Krstic. When told that Krstic was unavailable, he asked to be connected to the Commanding Officer. Colonel Popovic then spoke with Mr. Rasic, a duty officer of the Drina Corps. Colonel Popovic reported to Mr. Rasic that he was “just up there … with the boss personally,” that he has “finished the job,” and that Mr. Rasic should inform the “General.”¹²¹ Mr. Rasic asked Colonel Popovic whether the men from Colonel Blagojevic’s command arrived on time, and Colonel Popovic replied that these men were “up there” but had arrived late and “that is why the Commander who was here had problems.” Relying upon the evidence given by Mr. Butler, the Trial Chamber concluded that the reference to Colonel Popovic being “up there ” meant that Colonel Popovic has just returned from an area north of Zvornik, (i.e. the Pilica area) and that Mr. Rasic (and therefore the Drina Corps Command) knew of the executions that had occurred there.¹²²

73. On appeal, however, Mr. Butler corrected the evidence that he gave at trial in light of the evidence he had given in the Blagojevic trial.¹²³ In particular, he explained, the second reference made to “up there” and the problems resulting from the late arrival of Colonel Blagojevic’s men were a reference to the area of the battlefield towards the IKM (or Forward Command Post) and the Baljkovica area, where the most significant fighting took place. The problems mentioned during the phone conversation concerned the late arrival of reinforcements, which resulted in a situation where Colonel Pandurevic had to open a corridor to allow the column of Bosnian Muslim men to go through.¹²⁴ The Trial Chamber, however, had relied upon this intercept as further evidence that the men were sent from the Bratunac Brigade to assist in the executions on 16 July 1995 following Colonel Beara’s request to Radislav Krstic for additional men on the morning of 15 July.¹²⁵ In light of the additional evidence given by Mr. Butler, this inference is unsustainable.

    (ii) The Trial Chamber’s reliance on two further intercepted conversations dated 15 July 1995

74. The Defence further argues that the Trial Chamber erroneously interpreted an intercept of 15 July 1995 between Radislav Krstic and Colonel Beara as establishing that Krstic agreed to provide, and did provide, Colonel Beara with men from the Bratunac Brigade to assist in the executions. In fact, the Defence argues, the facts show that Radislav Krstic never followed up on Colonel Beara’s request.¹²⁶

75. The Trial Chamber relied upon two other intercepted conversations, both dated 15 July, as establishing that Krstic provided direct assistance to the executions.¹²⁷ In the first intercept, Colonel Beara requested General Zivanovic to send more men. General Zivanovic refused this request, and referred Colonel Beara to Radislav Krstic. Colonel Beara then urgently requested the assistance of Krstic in the distribution of “3,500 parcels,” telling him that “Furtula didn’t carry out the boss’s order.” The Trial Chamber concluded that this was a code term used in military communications to signify captured Muslim men who were to be killed. Krstic suggested that Colonel Beara seek help from other units, including the Bratunac and Milici Brigades of the Drina Corps, as well as the MUP. Colonel Beara replied that they are not available. Krstic then stated that he would see what he could do.¹²⁸ The Trial Chamber interpreted this response as evidencing an undertaking to secure the assistance requested.¹²⁹

76. The Trial Chamber based its conclusion that the term “parcel” was a reference to Bosnian Muslims on evidence in other intercepts in which that term was used, and more specifically on an intercept in which a reference to “people” was corrected to “parcels.”¹³⁰ As for the Trial Chamber’s conclusion that the word “distribute” referred to killing, that conclusion appears to be based solely on the Prosecution’s opening statement, where it argued that “distribute” meant to kill.¹³¹ The Trial Chamber found the Prosecution’s argument persuasive, and, in the absence of any further examination of the term, the Trial Chamber does not appear to have based its understanding of the word “distribute” on anything more than the Prosecution’s assertion. While such an inference may be drawn from this coded language, its meaning is insufficiently clear to conclude that no alternative interpretation is possible. Moreover, Krstic’s statements to Colonel Beara that he “will see what he can do” cannot support the weight of reliance the Trial Chamber placed upon it. Rather than a firm promise of help, the statements could have been a refusal to commit, an effort by Krstic to end the conversation without saying a firm “no” but also without assuming an unambiguous obligation to help.

    (d) The considerations of the Appeals Chamber

77. Given the evidence relied upon by the Trial Chamber, and the corrections made to that evidence by Mr. Butler, the finding of the Trial Chamber that men from the Bratunac Brigade were dispatched by Krstic to assist in the executions at Branjevo Farm and Pilica Dom is one that no reasonable trier of fact could have made. The evidence fails to establish the direct involvement of the Drina Corps in carrying out the executions, and as such cannot be relied upon as evidence of Radislav Krstic’s direct involvement in assisting the executions.

78. The evidence does, however, establish the involvement of Drina Corps personnel and assets in facilitating the executions. The Trial Chamber’s finding on that point is supported by Mr. Erdemovic’s evidence that his unit was accompanied to the Branjevo Military Farm by two Drina Corps military police officers, and that military police officers wearing the insignia of the Drina Corps escorted the buses of Bosnian Muslim civilians to the Branjevo Military Farm, and supervised their unloading.
    D. The Appeals Chamber’s Analysis of Radislav Krstic’s Criminal Responsibility

79. It remains for the Appeals Chamber to determine whether the Trial Chamber erred in finding that Radislav Krstic shared the genocidal intent of a joint criminal enterprise to commit genocide against the Bosnian Muslims of Srebrenica. The Appeals Chamber will now proceed with its analysis of Krstic’s criminal responsibility in light of its findings above.
    1. The Trial Chamber’s finding that Radislav Krstic shared the intent of a joint criminal enterprise to commit genocide

80. The Defence argues that in finding that Radislav Krstic shared the intent to commit genocide, the Trial Chamber failed to accord to him the presumption of innocence. The Defence identifies a number of instances in which the Trial Chamber used the language “must have known,” “could not have failed to know,” and “could only surmise” as illustrative of this failure.¹³² The Defence argues that the Trial Chamber adopted this language to mask the lack of a proper evidentiary basis for its finding that Krstic possessed the intent to commit genocide.¹³³

81. The Trial Chamber properly articulated the standard of proof to be applied to the Defence as being one of proof beyond reasonable doubt.¹³⁴ The Trial Chamber’s reliance upon language such as “must have known” is indicative of the nature of the case against Krstic being one based upon circumstantial evidence. While the Trial Chamber should have used less ambiguous language when making findings concerning Krstic’s knowledge and intent, the regrettable choice of phraseology alone is not sufficient to overturn the Trial Chamber’s findings.

82. The Defence argues, however, that even if the Trial Chamber properly articulated the standard of proof, its conclusion that Krstic shared the genocidal intent of the joint criminal enterprise is erroneous. The Appeals Chamber therefore considers the evidence on which the Trial Chamber relied to establish that Krstic shared the intent of the joint criminal enterprise to commit genocide.

83. As already stated, the case against Radislav Krstic was one based on circumstantial evidence, and the finding of the Trial Chamber was largely based upon a combination of circumstantial facts. In convicting Krstic as a participant in a joint criminal enterprise to commit genocide, the Trial Chamber relied upon evidence establishing his knowledge of the intention on the part of General Mladic and other members of the VRS Main Staff to execute the Bosnian Muslims of Srebrenica, his knowledge of the use of personnel and resources of the Drina Corps to carry out that intention given his command position, and upon evidence that Radislav Krstic supervised the participation of his subordinates in carrying out those executions.
    2. Contacts between Radislav Krstic and other participants in the joint criminal enterprise

84. The Trial Chamber found the contacts between Krstic and General Mladic to be crucial to establishing Radislav Krstic’s genocidal intent. The parties agreed that General Mladic was the main figure behind the killings. The Trial Chamber found that Generals Krstic and Mladic were in constant contact throughout the relevant period. ¹³⁵ The Trial Chamber concluded that “if General Mladic knew about the killings, it would be natural for Krstic to know as well”.¹³⁶

    (a) Radislav Krstic’s presence at the meetings in the Hotel Fontana

85. Reaching this conclusion, the Trial Chamber first relied upon the presence of Krstic at the second and third of three meetings convened by General Mladic at the Hotel Fontana on 11 and 12 July 1995. The fate of the Bosnian Muslims following the fall of Srebrenica was discussed at these meetings.¹³⁷ Based on his presence at two of these meetings, the Trial Chamber concluded that Radislav Krstic “was put on notice that the survival of the Bosnian Muslim population was in question following the take-over of Srebrenica.”¹³⁸

86. All three meetings convened by General Mladic were attended by UNPROFOR leaders and Bosnian civilians leaders selected by UNPROFOR.¹³⁹ At the first of these meetings, at which Krstic was not present, Colonel Karremans of Dutch-bat sought assurances from General Mladic that the Bosnian Muslim population of Srebrenica, together with Dutch-bat personnel, would be allowed to withdraw from the area. General Mladic stated that the Bosnian Muslim civilian population was not the target of his actions, and he asked UNPROFOR if they could provide buses for the transportation of the civilian population.¹⁴⁰ It was at the second meeting, at which Krstic was present, that the plan to transport the civilian population crystallised.¹⁴¹

87. The most that Radislav Krstic’s presence at these meetings established is his knowledge about General Mladic’s decisions to transfer the population from Potocari to Muslim-held territory on buses, and to screen the male members of this population prior to transportation for war criminals. As the Trial Chamber acknowledged, the decision to screen was neither criminal nor unreasonable. The Bratunac Brigade had drawn up a list of over 350 suspected war criminals thought to be in the Srebrenica area.¹⁴² Although General Mladic also announced that the survival of the population depended upon the complete surrender of the ABiH, it is unlikely that General Mladic would be disclosing his genocidal intent in the presence of UNPROFOR leaders and foreign media, or that those present at the meeting, including Krstic, would have interpreted his comments in that light. There was no evidence to suggest that at this time Radislav Krstic knew about the intent on the part of General Mladic to execute the Bosnian Muslim civilians who were to be transferred.

88. There was, however, evidence to suggest that Krstic was aware of the intention of the members of the Main Staff to take total control of Srebrenica and make the situation unbearable for the Bosnian Muslims in Srebrenica, both military and civilian. In March 1995, the President of Republika Srpska, Radovan Karadzic, in reaction to the pressure of the international community to end the war and create a peace agreement, issued a directive to the VRS, “Directive 7” setting out the long-term strategy of the VRS. Directive 7 specified that the VRS was to “complete the physical separation of Srebrenica from Zepa as soon as possible, preventing even communication between individuals in the two enclaves. By planned and well-thought out combat operations, create an unbearable situation of total insecurity with no hope of further survival or life for the inhabitants of Srebrenica.”

89. Part of the plan included the blocking of aid convoys. The Directive declared that

    the relevant State and military organs responsible for the work of UNPROFOR and humanitarian organisations shall, through planned and unobtrusively restrictive issuing of permits, reduce and limit the logistics support of UNPROFOR to the enclaves and the supply of material resources to the Muslim population, making them dependent on our good will while at the same time avoiding the condemnation of the international community and international public opinion.

    On 31 March 1995, the VRS Main Staff issued Directive 7.1. This Directive, signed by General Mladic, sought to implement Directive 7 and directed the Drina Corps to conduct “active combat operations… around the enclaves.”

90. Directives 7 and 7.1 are insufficiently clear to establish that there was a genocidal intent on the part of the members of the Main Staff who issued them. Indeed, the Trial Chamber did not even find that those who issued Directive 7 and 7.1 had genocidal intent, concluding instead that the genocidal plan crystallised at a later stage. At most, Krstic’s knowledge of these Directives alerted him to the military plan to take over Srebrenica and Zepa, and to create conditions that would lead to the total defeat of the Bosnian Muslim military forces in the area, without whose protection the civilian population would be compelled to leave the area. It also alerted Radislav Krstic to the intention of the Main Staff to obstruct humanitarian aid to the civilians of Srebrenica so that their conditions would become unbearable and further motivate them to leave the area.

91. It is reasonable to infer that the meetings at Hotel Fontana were a further step in the implementation of the goals of the Directive. At each of those meetings, General Mladic called for the total surrender of the Bosnian Military forces in the area. In the two meetings at which Krstic was present, General Mladic's primary concern was securing the surrender of the Bosnian military forces in the area. In the second meeting, General Mladic said that the population had to choose whether to stay or whether to go, and he demanded that all ABiH troops in the area surrender their weapons, and emphasised that the survival of the civilian population in the enclave was linked to the surrender of the ABiH troops.¹⁴³ At the third meeting, he again made it clear that the survival of the civilian population in the area was conditional upon the capitulation of the ABiH forces.¹⁴⁴ He said “you can either survive or disappear … For your survival, I request: that all your armed men who attacked and committed crimes – and many did – against our people, hand over their weapons to the Army of the Republika Srpska … on handing over weapons you may … choose to stay in the territory … or, if it suits you, go where you want. The wish of every individual will be observed, no matter how many of you there are.”¹⁴⁵ To secure the surrender of the ABiH forces General Mladic was willing to threaten severe repercussions for the civilian population that chose to remain in the area but was also willing to facilitate their removal. As already stated, however, the public nature of the meeting at which these threats were made, and particularly, the presence of members of the international community, make it difficult to conclude that General Mladic was in fact publicly stating his genocidal intent.

    (b) The evidence of Momir Nikolic and Miroslav Deronjic

92. The Prosecution argues, as it did at trial, that Radislav Krstic knew at the time of his attendance at the third meeting at the Hotel Fontana of the genocidal intent of the Serb leadership. The Prosecution relies upon the additional evidence given by Momir Nikolic in the Blagojevic trial, and admitted in this Appeal, and upon the evidence of Miroslav Deronjic, who was summoned by the Appeals Chamber on its own initiative.

93. Momir Nikolic testified that on the morning of the 12 July 1995, and prior to the third meeting at the Fontana Hotel, he met with Lieutenant Colonel Kosotic and Colonel Popovic, and was told by Colonel Popovic that on that day the women and children would be evacuated but the men would be temporarily detained and then killed. The Prosecution argues that this evidence shows that a firm plan to kill the Muslim men of Srebrenica was formed as early as 12 July 1995.¹⁴⁶ While this evidence may support the existence of such a plan on the part of the Main Staff of the VRS, it does not go to Krstic’s knowledge of or participation in such a plan.

94. The evidence given by Miroslav Deronjic does not help the Prosecution either. Although Mr. Deronjic gave some evidence of an intention on the part of the Serb leadership prior to 13 July 1995 to kill the Bosnian Muslim civilians in Srebrenica should military operations in that region be successful, he gave no evidence linking Radislav Krstic to a genocidal plan or indicating that Krstic was aware of that intention on the part of the Bosnian Serb leadership.¹⁴⁷ As such, the evidence of neither additional witness supports the Prosecution’s argument. Further, the Appeals Chamber is hesitant to base any decision on Mr. Deronjic’s testimony without having corroborating evidence. The discrepancies in the evidence given by Mr. Deronjic and the ambiguities surrounding some of the statements he made, particularly with respect to his sighting of Krstic at Hotel Fontana, caution the Appeals Chamber against relying on his evidence alone.

    (c) The Trial Chamber’s findings regarding Radislav Krstic’s presence around Potocari and the removal of the men from the buses at Tisca

95. The Trial Chamber rejected the Prosecution’s argument that Krstic’s assistance in organising the transportation of the women, children and elderly from Potocari were acts carried out pursuant to a joint criminal enterprise to commit genocide. The Trial Chamber did however rely on the presence of Radislav Krstic in and around the Potocari compound for between one and two hours in the afternoon of 12 July, at which time he was seen conferring with other high ranking military officers, including General Mladic, as evidence of his growing knowledge that genocide would be committed.¹⁴⁸ The Trial Chamber found that as a result of his presence there, Krstic “must have known of the appalling conditions facing the Bosnian Muslim refugees and the general mistreatment inflicted upon them by VRS soldiers on that day.”¹⁴⁹ The Trial Chamber further found that, based on Krstic’s presence at the White House, he was aware that the segregated men were being detained in terrible conditions and were not being treated in accordance with accepted practice for war crime screening.¹⁵⁰ The Trial Chamber concluded that he must have realised, as did all other witnesses present around the compound, that the fate of these men was terribly uncertain but that he made no effort to clarify this with General Mladic or anyone else.¹⁵¹

96. However, the Trial Chamber also concluded that it was not until 13 July 1995 that Dutch-bat troops witnessed definite signs that Bosnian Serbs were executing some of the Bosnian Muslim men who had been separated; that it was not until all the Bosnian Muslim civilians were removed from Potocari that the personal belongings of the separated men were destroyed; and that Dutch-bat troops were certain that the story of screening for war criminals was not true.¹⁵² The Trial Chamber was unable to conclude that any Drina Corps personnel were still in the compound at that time, and there was no evidence that Krstic was either aware of the shootings at the White House, or the destruction of the personal belongings of the separated men.¹⁵³

97. The Trial Chamber also found that Radislav Krstic must have known that men who managed to board the buses with the women, children and elderly were being removed from them at Tisca.¹⁵⁴ Evidence of an intercept of 12 July 1995 established that Krstic ordered the Drina Corps to secure the road from Vlasenica toward Tuzla. The Trial Chamber concluded that this fact gave rise to the inference that he must have known men were being taken off the buses at Tisca. It further found that the Chief of Staff of the Milici Brigade, and troops from his unit, were present at the Tisca screening site upon the orders of the Drina Corps Command.¹⁵⁵ On the basis of this evidence the Trial Chamber concluded that it was clear that Krstic must have known that men were being separated at Tisca and taken to detention sites. Notably, however, the Trial Chamber did not establish at this point that Radislav Krstic knew the prisoners were to be executed.¹⁵⁶

98. It should be clear by now that - despite the Trial Chamber’s assertion that if General Mladic knew about the killings, then Krstic must have also known - the Trial Chamber did not actually establish, from Krstic’s contacts with General Mladic during the relevant period, that Radislav Krstic in fact learned of the intention to execute the Bosnian Muslims as a result of those contacts. The Trial Chamber’s assertion was without a proper evidentiary basis. Without having established that Krstic knew of that intention on the part of General Mladic, no reasonable Trial Chamber could have made the further inference that Krstic shared that intention. Although the Trial Chamber placed relatively little weight upon the finding in terms of determining the criminal liability of Radislav Krstic, this erroneous finding of the Trial Chamber casts some doubt upon its overall conclusion that Radislav Krstic shared the genocidal intent.

    (d) The Trial Chamber’s reliance on various other facts

99. The Trial Chamber based its finding as to Krstic’s intent on a number of other facts as well. The men separated at Potocari were transported to Bratunac, along with other Bosnian Muslim prisoners captured in the wooded terrain. The Trial Chamber found that the Bratunac Brigade would have informed the Drina Corps Command about the arrival of the prisoners,¹⁵⁷ and that the Drina Corps Command must have known that the prisoners were not being transferred to regular prisoner of war facilities, but were being detained in Bratunac without any provision for food and water etc.¹⁵⁸ From Radislav Krstic’s presence in Potocari and his role in organising the transportation, the Trial Chamber concluded that he must known that the men were being separated from women and children and either detained, or were being transported elsewhere.¹⁵⁹

100. This evidence does not by itself establish that Krstic knew about the joint criminal enterprise to destroy the Bosnian Muslim population. As the Trial Chamber itself acknowledged, the separation of the men and their detention elsewhere may have been equally consistent with General Mladic’s publicly stated intention that they be screened for possible war criminals. The separation and detention of the men was also consistent with an intention to exchange the prisoners for the Serbian soldiers captured by the Bosnian Muslims. The Trial Chamber heard evidence that such exchanges were frequent during the military conflict in the former Yugoslavia and that “a new infusion of Bosnian Muslim prisoners would have been a potentially useful bargaining tool for the Bosnian Serbs in future exchange negotiations.”¹⁶⁰ Indeed, the decision to execute the Bosnian Muslim civilians was, according to the Prosecution expert, “unfathomable in military terms”.¹⁶¹ If this decision was so unexpected and irrational, it is surely unreasonable to expect Radislav Krstic to anticipate such a course of events on the basis of observations that are equally (if not more so) consistent with an innocent outcome. Krstic’s knowledge of the detention of prisoners in Bratunac is therefore not sufficient to support an inference of actual knowledge about the execution plan, and by extension, an inference of genocidal intent on the part of Krstic.

101. The Trial Chamber found that because the subordinate brigades continued to operate under the Command of the Drina Corps, the command itself, including Radislav Krstic, must have known of the involvement of these subordinate units in the executions as of 14 July 1995.¹⁶² In support of this conclusion the Trial Chamber relied upon what it described as direct evidence of Krstic’s knowledge of and involvement in the executions.¹⁶³ The Trial Chamber found that, although at the time the genocidal plan was implemented, Radislav Krstic was commanding the Zepa operation, he was nevertheless constantly travelling to the Drina Corps forward command post in Vlasenica. The Trial Chamber found, moreover, that he was in communication with all of the officers in his zone of responsibility. The Trial Chamber acknowledged that these contacts alone could not support the inference that Krstic was involved in the executions. These contacts, in the Trial Chamber’s view, merely provided additional support to the other evidence of Krstic’s involvement in the executions.¹⁶⁴

     (i) The Trial Chamber’s reliance upon contacts with Colonel Beara

102. First, the Trial Chamber relied heavily upon Radislav Krstic’s contacts with Colonel Beara, who was closely involved in the killings,¹⁶⁵ and in particular the evidence of conversation intercepts of 15 July 1995, as discussed above. In the first intercept, Colonel Beara requested General Zivanovic to send more men, but General Zivanovic refused and referred Colonel Beara to Radislav Krstic. Colonel Beara then urgently requested the assistance of Krstic in the distribution of “3,500 parcels,” telling him that “Furtula didn’t carry out the boss’ order.” The Trial Chamber concluded that this was a code term used in military communications to signify captured Muslim men. Radislav Krstic suggested that Colonel Beara seek help from other units, but Colonel Beara replied that these units were not available and that he was at a loss as to what to do. He told Krstic that he only needed the men for a few hours and could return them at the end of the day. Radislav Krstic replied that he would see what he could do.¹⁶⁶

103. The Trial Chamber found that both Zivanovic and Radislav Krstic knew about the prior “boss’s order” to send 30 men with Boban Inðic three days earlier, on 13 July 1995. The Trial Chamber stated further that the commencement of the executions on 13 July 1995 supported an inference that these 30 men, who did not arrive, were to assist in the executions.¹⁶⁷ The Trial Chamber found that Colonel Beara’s statement that he only needed the men for a few hours indicated a short and discreet assignment rather than a deployment for combat.¹⁶⁸ It stated that the intercept strongly implied that when the MUP troops declined to carry out the killings, Krstic agreed to help and arranged for Bratunac Brigade members to assist in the killings at Branjevo Farm and the Pilica Dom the following day.¹⁶⁹ The Trial Chamber concluded that Radislav Krstic’s initial reluctance to assist was consistent with the fact that by this time units from the Zvornik Brigade had been withdrawn from Zepa and sent back to address the urgent situation in their zone of responsibility.¹⁷⁰ As such, the Trial Chamber relied upon this intercept as establishing that Krstic knew about the executions, and with that knowledge he undertook to assist Colonel Beara by supplying the additional men needed to carry out those executions.¹⁷¹

104. The Trial Chamber’s reliance upon Radislav Krstic’s knowledge from this intercept as establishing intent on the part of Krstic to participate in a genocidal plan is unreasonable. Krstic’s statement to Colonel Beara (“You guys fucked me up so much”), coupled with his next comment, “Fuck it, now I’ll be the one to blame,” ¹⁷² shows at most that Radislav Krstic was aware that killings were occurring.¹⁷³ The conversation, moreover, easily lends itself to the interpretation that, prior to the conversation, Krstic had no knowledge that Colonel Beara was involved in the execution of Muslims, and was angry with Colonel Beara that responsibility would now be attached to him. Even if it is accepted that the conversation between Radislav Krstic and Colonel Beara related to the execution of Muslim prisoners, it only establishes knowledge on the part of Krstic that genocide was being committed. It cannot establish intent to commit genocide. Likewise, the fact that Krstic suggested that men be taken from his subordinates may support a finding of knowledge that executions of Bosnian Muslims were taking place, but it cannot establish that Radislav Krstic shared the intent to commit genocide. At most, a reasonable trier of fact could conclude that from this time, Krstic had knowledge of the genocidal intent of some members of the VRS Main Staff.

105. The Trial Chamber pointed to the evidence that Colonel Beara was amongst the Command Staff at Zepa along with General Mladic, and was involved in negotiations at Zepa from mid-July 1995, and to evidence of Colonel Beara seeing Radislav Krstic at an UNPROFOR checkpoint in Zepa during the Zepa operation.¹⁷⁴ The evidence of such other contacts Krstic had with Colonel Beara during the relevant period is also insufficient to support an inference of genocidal intent on the part of Radislav Krstic.

106. The Trial Chamber referred to the fact that the Defence denied that he had had this conversation with Colonel Beara. It found that at the time the conversation took place on 15 July 1995, Radislav Krstic knew that the executions were occurring, and that he undertook to assist Colonel Beara in obtaining the necessary personnel to carry them out.¹⁷⁵ On Appeal, the Defence accepted that the conversation had occurred, but denied that Krstic had acted on Colonel Beara's request. This inconsistency in Krstic's testimony does not, however, establish that Krstic lied in order to hide the fact that he shared the genocidal intent of some members of the Main Staff. As a general principle, where an accused is shown to have lied about a fact during a criminal trial, an inference that he lied to obfuscate his own guilt may only be drawn where all other reasonable possible explanations for that lie have been excluded. The most that can be said about the Defence's inconsistent position is that Radislav Krstic knew, from his conversation with Colonel Beara, that killings were being carried out with genocidal intent. It cannot be concluded, as a result of Krstic’s inconsistencies, that he subscribed to that genocidal intent. His lie is explicable as a desire to avoid just such an adverse inference being drawn to his detriment, and it cannot support the inference that he shared the genocidal intent of some members of the Main Staff.

     (ii) The Trial Chamber’s reliance upon contacts with Colonel Pandurevic

107. Secondly, the Trial Chamber relied on evidence of Radislav Krstic’s close contact during the relevant period with the commander of the Zvornik Brigade, Colonel Vinko Pandurevic. The Trial Chamber found that Colonel Pandurevic was ordered back by Krstic to his area of responsibility on 14 July 1995, (following requests made to Radislav Krstic by General Zivanovic and Major Obrenovic)¹⁷⁶ in light of the dual problems of Muslim combatants and prisoners.¹⁷⁷ Once Colonel Pandurevic was back in the Zvornik Brigade area of responsibility, he sent an interim combat report to the Commander of the Drina Corps on 15 July 1995 concerning the threat posed to the Zvornik Brigade by the Bosnian Muslim column. Colonel Pandurevic stated that “(a(n additional burden for us is the large numbers of prisoners distributed throughout schools in the brigade area as well as obligations of security and restoration of the terrain…This command cannot take care of these problems any longer, as it has neither the material nor other resources. If no one takes on this responsibility I will be forced to let them go.”¹⁷⁸

108. At the time Colonel Pandurevic sent this report the prisoners held at Orahovac and Petkovci Dam had already been executed, though the prisoners in Pilica and those who were at Kozluk were still alive. The Trial Chamber found that the report made clear that Colonel Pandurevic knew about the prisoner situation in his area of responsibility and that he was concerned about the diversion of resources from combat with the 28th Division of the ABiH in order to meet the situation caused by prisoners in his zone.¹⁷⁹ The Trial Chamber concluded that at the time he wrote the report, Colonel Pandurevic knew about the ongoing execution of Bosnian Muslim prisoners in his zone of responsibility.

109. The Trial Chamber further found that Colonel Pandurevic’s knowledge of the execution was consistent with his complaint that vital resources were being diverted to deal with prisoners. On 13 and 14 July 1995, Zvornik Brigade resources had been used to locate detention sites for the prisoners, and on 14 and 15 July 1995, Zvornik Brigade resources had been used to assist with the executions at Orahavoc and Petkovci Dam.¹⁸⁰ As Commander of the Zvornik Brigade, Colonel Pandurevic would have been informed about the deployment of resources for this purpose given the impact that this diversion was having on the ability of the Zvornik Brigade to respond to the military threat posed by the Bosnian Muslim column. The Trial Chamber accepted that the interim combat report was written on the assumption that the Drina Corps Command, and Radislav Krstic as its Commander, knew about both the prisoner situation and the executions being carried out in the Zvornik Brigade’s area of responsibility.¹⁸¹ It found that until that time, the Zvornik Brigade had been assigned tasks relating to the prisoners and that Colonel Pandurevic “warned his Command that he would not tolerate the situation any longer”.¹⁸²

110. On 15 July 1995, another report was received by Radislav Krstic from Colonel Milanovic, who believed that Krstic knew about Colonel Pandurevic’s situation.¹⁸³ Further, an intercepted conversation on 16 July 1995 showed that Krstic was taking steps to remain fully informed of the developing situation of the Zvornik Brigade.¹⁸⁴ On 17 July 1995 an intercepted conversation between Krstic and the Duty Officer, Captain Trbic, was recorded in which Captain Trbic informed Radislav Krstic that there were no further problems pursuant to the 16 July 1995 Combat Report, and that everything was under control. In that intercept Krstic was heard to ask “have you killed the Turks up there ?” This was conceded by the Prosecution to be a reference to combat activities and not the Bosnian Muslim prisoners.¹⁸⁵ In an intercepted conversation of 19 July 1995, Colonel Cerovic stated that he had presented an interim report to Radislav Krstic. The Trial Chamber relied on this evidence as further establishing that Krstic knew what was happening in Zvornik and was kept fully informed about the executions.¹⁸⁶

111. The evidence before the Trial Chamber of military reports being sent to Radislav Krstic by Colonel Pandurevic does establish that even while Krstic was away and engaged in military operations in the area of Zepa, he was monitoring the situation within the zone of responsibility of the Zvornik Brigade. The reports do not establish, however, that Radislav Krstic was being informed about the executions or other mishandling of prisoners. In fact, one of the reports states, to the contrary, that both the military and the MUP forces will “protect the population and property ”. The more logical inference is that he was receiving reports about the combat activities with the column. Even accepting that Krstic was aware, on the basis of these reports, that executions were being carried out in the Zvornik Brigade’s area of responsibility, this knowledge cannot support an inference of genocidal intent on his part. There was no evidence that Radislav Krstic was in fact directing those executions or supervising their commission by the Zvornik Brigade.

112. During the trial the military expert for the Defence, Mr. Radinovic, conceded that the proper interpretation of a further interim combat report sent by Colonel Pandurevic on July 1995 was that Colonel Pandurevic was expressing strong discontent about the crimes that had occurred in his area of responsibility.¹⁸⁷ While the Trial Chamber relied upon this concession as further evidence of knowledge of the executions on the part of Radislav Krstic, the fact that his subordinate was expressing discontent about the executions in reports to Krstic speaks against rather than in favour of a genocidal intent on the part of Radislav Krstic. Again, the most this report establishes is that Krstic knew that those executions had taken place.

     (iii) The Trial Chamber’s reliance upon contacts with Colonel Popovic

113. Next, the Trial Chamber relied on the evidence of Radislav Krstic’s frequent contacts with Colonel Popovic during the relevant period.¹⁸⁸ On 16 July 1995, an intercepted conversation recorded a request being made to the Drina Corps Command for fuel on behalf of Colonel Popovic, who was in the zone of the Zvornik Brigade. The Zvornik Brigade Duty Officer making the request stated that Colonel Popovic would not continue the work he was doing unless the fuel requested was supplied, and later in the conversation, stated that “the bus loaded with oil is to go to Pilica village.” Records for 16 July 1995 confirmed that 500 litres of fuel were dispatched to Colonel Popovic, and the Drina Corps Command is noted as the recipient.¹⁸⁹ The Trial Chamber relied upon this evidence to establish that Krstic, as the Commander of the Drina Corps, must have known that the fuel had been allocated to Colonel Popovic and that the fuel was being used to assist Colonel Popovic in the executions.¹⁹⁰ Again, the only inference this evidence is capable of sustaining is one of knowledge on the part of Krstic, not of shared genocidal intent.

114. The Trial Chamber also relied upon an intercept of 17 July 1995 as establishing that Colonel Popovic was reporting specifically to Radislav Krstic about the executions. On 17 July 1995 Krstic called Major Golic from the Intelligence sector of the Drina Corps looking for Colonel Popovic. He was informed that Colonel Popovic was still in Zvornik but would be back in the afternoon. Radislav Krstic then instructed Major Golic to locate Colonel Popovic and tell him to “call the Forward Command Post immediately.” A few hours later, Colonel Popovic was overheard in a conversation with an individual he addressed as “boss” in which he stated that the job was done and “the grade was an A.”¹⁹¹

115. The Trial Chamber found that although Krstic was not identified in the conversation, given that at the time of Colonel Popovic’s call the executions had been completed, and that some hours earlier Radislav Krstic had been trying to contact Colonel Popovic, and given Colonel Popovic’s reference to “boss,” there was nevertheless a strong inference that Colonel Popovic was reporting to Krstic. While the Trial Chamber’s finding that Colonel Popovic was reporting to Radislav Krstic on the murder operation is plausible, no reasonable trier of fact could have concluded that this was the only reasonable inference that could be drawn from the evidence. The reason why Krstic wanted Colonel Popovic to call him was never identified, and the inference that he wished to receive a report about the killing operation is therefore conjecture. It is also far from certain that the individual to whom Colonel Popovic was reporting was Krstic. The call was made some hours after Radislav Krstic attempted to speak with Colonel Popovic. In the preceding intercept, the Trial Chamber found a reference to “boss” to be a reference to Colonel Pandurevic, and a reference to “General” to be a reference to Radislav Krstic.¹⁹² This finding was made in circumstances identical to the intercept at issue here, namely where the caller was Colonel Popovic. Given these factors, the inference drawn from this intercept by the Trial Chamber was not the only one a reasonable trier of fact could have made.

116. Other contacts with Colonel Popovic referred to by the Trial Chamber are to Colonel Popovic’s presence with Radislav Krstic and other VRS officers who walked through the streets of Srebrenica on the afternoon of 11 July, Colonel Popovic’s attendance at the Hotel Fontana meeting on the morning of 12 July 1995, his presence in Potocari on 12 July 1995 and his presence behind Krstic while he gave his interview in Potocari on 12 July 1995. All that this evidence establishes is the fact that these contacts occurred at these times.

     (iv) The Trial Chamber’s reliance upon contacts with Colonel Borovcanin

117. Finally, the Trial Chamber relied upon the contacts Radislav Krstic had with Colonel Borovcanin from the MUP during the relevant period.¹⁹³ In an intercepted conversation of 13 July 1995 Krstic spoke to Colonel Borovcanin. In response to Radislav Krstic’s inquiry as to how things were going, Colonel Borovcanin informed him that things were “going well.” Krstic then said, “Don’t tell me that you have any problems.” Colonel Borovcanin answered, “I don’t, I don’t.”¹⁹⁴ The Trial Chamber relied upon this conversation to show that Radislav Krstic must have known, that by the evening of 13 July, there were several thousand Bosnian Muslim men being held prisoner in the zone of responsibility of the Drina Corps and that by the evening of 13 July, the Drina Corps must have been aware that the executions had taken place. ¹⁹⁵

118. The Prosecution asks the Appeals Chamber to consider the intercept of 13 July 1995 in light of the additional evidence given by Mr. Deronjic and Colonel Obrenovi c. According to Mr. Deronjic, Colonel Borovcanin had admitted that his men had carried out the Kravica mass execution in retaliation for the killing of two Serb policemen.¹⁹⁶ This evidence was corroborated by Colonel Obrenovic’s evidence that Colonel Borovcanin told him that Borovcanin’s unit had blockaded the road from Konjevic Polje to Kravica, that it experienced a lot of fighting and casualties, and had taken quite a few Muslim prisoners.¹⁹⁷ The Prosecution argues that this evidence establishes that Colonel Borovcanin’s troops had committed a mass execution on that day and that Colonel Borovcanin was reporting to Krstic the results. According to the Prosecution, this was yet another piece of evidence showing that Radislav Krstic knew about and agreed wholeheartedly with the murder operation, and was in fact monitoring the MUP forces.

119. The intercepted conversation between Colonel Borovcanin and Radislav Krstic is too oblique to support an inference that the conversation was a report by Colonel Borovcanin about a successfully completed execution of Muslims at the Kravica Farm on 13 July. Moreover, Mr. Deronjic’s evidence was that the execution at the Kravica Farm was not planned, but was instead a spontaneous reprisal following a clash between the Muslim prisoners and the guards.¹⁹⁸ If so, then the initiative for the massacre could have resided with the camp authorities rather than with the higher military commanders such as Krstic. This evidence, therefore, does not support an inference of genocidal intent on the part of Krstic.

     (v) Additional Evidence from Captain Nikolic

120. The Prosecution also relies upon the additional evidence presented during the Appeals hearing by Captain Momir Nikolic about a burial operation on 12 July 1995. Captain Nikolic’s evidence was that his troops were involved in a reburial operation, and that he informed his Commander, Colonel Blagojevic, about everything that was to be done in relation to the operation. Captain Nikolic also informed the Commander of the military police, Mirko Jankovic, because the military police had a role to play in that burial operation.¹⁹⁹ This evidence lends no support to the Prosecution’s argument. The earliest evidence of an extermination of Muslim prisoners appears to be the execution at the Kravica Farm on 13 July 1995. The events described by Captain Nikolic occurred on 12 July 1995. It is, moreover, not clear who the individuals to be reburied were. In any event, even if there is a connection between the reburial operation and the murders at issue in this case, there is no reference in Captain Nikolic’s testimony to Radislav Krstic, nor is there any reference elsewhere in the record to Colonel Blagojevic informing Krstic about this particular reburial operation.

121. In conclusion, Radislav Krstic’s contacts with those who appeared to be the main participants in the executions establish, at most, that Krstic was aware that those executions were taking place. Radislav Krstic’s knowledge of those executions is insufficient to support an inference that he shared the intent to commit genocide.

     (vi) The Trial Chamber’s reliance upon evidence of the use of Drina Corps resources

122. The Trial Chamber also relied upon evidence that Drina Corps personnel and resources were used in carrying out the executions. The Trial Chamber rejected the Prosecution’s argument that the Drina Corps participated in the executions at Jadar River and Cerska Valley.²⁰⁰ While the Trial Chamber did not establish direct participation by the Drina Corps in the executions at the Kravica Warehouse, it concluded that the Drina Corps Command must have been aware that the buses used to transport the women, children and elderly had been diverted from that purpose to transfer the prisoners to the Kravica warehouse. Furthermore, based on the close proximity of the Bratunac Brigade to the executions and burial sites, and the scale of the executions, the Trial Chamber concluded that the Drina Corps would have known that those executions were being carried out.²⁰¹

123. The Trial Chamber found that substantial evidence linked the Zvornik Brigade to the executions at Orahovac.²⁰² First, Orahovac was located within the zone of responsibility of the 4th Battalion of the Zvornik brigade. Second, a vehicle belonging to the Zvornik Brigade had visited the area on 13 and 14 July 1995, and the vehicle records established that two Zvornik military police officers had been assigned this vehicle. Third, Zvornik Brigade records established that a detachment of military police from the Zvornik Brigade was dispatched to Orahovac on the evening of 13 July 1995. Fourth, a survivor of the executions testified that he recognised the voice of a former colleague, Gojko Simic, among the executioners. Gojko Simic was established as being the Commander of the Heavy Weapons Platoon of the 4th Infantry Battalion of the 1st Zvornik Infantry Brigade. Fifth, the records of the Zvornik Brigade’s Engineer Company recorded vehicles, excavators, loaders and trucks, as well as fuel being used in relation to Orahovac from 14 to 16 July 1995 inclusive.²⁰³

124. On the basis of this evidence, the Trial Chamber concluded that the Zvornik Brigade of the Drina Corps participated in the executions on 14 July 1995. The Trial Chamber found that members of the Zvornik Brigade military police were present in the area prior to the executions, “presumably for such purposes as guarding the prisoners and then facilitating their transportation to the execution fields.” It also found that personnel from the 4th Battalion of the Zvornik Brigade were present at Orahovac during the executions and assisted in their commission. Finally, machinery and equipment belonging to the Engineers Company of the Zvornik Brigade was used for tasks related to the burial of the victims between 14 and 16 July 1995.²⁰⁴

125. With respect to the executions at the Petkovci Dam, the Trial Chamber found that Vehicle and Daily Order Records of the Zvornik Brigade established that drivers and trucks from the 6th Infantry Battalion of the Zvornik Brigade were used to transport the prisoners from Petkovci School to the detention site at Petkovci Dam on 15 July, and that the Zvornik Brigade Engineer Company was assigned to work with earthmoving equipment to assist in the burial of the victims.²⁰⁵

126. The Trial Chamber also relied on the evidence linking the Drina Corps to the executions at the Branjevo Farm and Pilica Dom. The Appeals Chamber has already determined that the Trial Chamber’s conclusion that Krstic deployed troops from the Bratunac Brigade to assist in the executions at Branjevo Military Farm and Pilica Dom was not a finding that a reasonable trier of fact would have made. This conclusion, however, leaves undisturbed the Trial Chamber’s finding that Drina Corps military police escorted the Bosnian Muslim civilians on the buses that had earlier been procured to transport the women, children and elderly to the execution site at Branjevo Military Farm, and that Zvornik Brigade equipment was used for activities related to the burial of the victims. Also undisturbed is the finding of the Trial Chamber that Colonel Popovic was involved in procuring fuel from the Drina Corps Command to transport the Bosnian Muslim prisoners to the execution sites.²⁰⁶ Further, the Bratunac Brigade Military Police Platoon log for 16 July 1995 recorded that “one police patrol remained in Pilica to secure and watch over the Bosnian Muslims”. The Trial Chamber found that as there was no combat in Pilica, this patrol must have been guarding the Bosnian Muslim prisoners.²⁰⁷

127. With respect to the executions at Kozluk and Nezuk, the Trial Chamber found that records from the Zvornik Brigade established that its excavators and bulldozers had operated in the Kozluk area from 16 July 1995 and that this equipment was used for work related to the burial of the victims executed there.²⁰⁸ The Trial Chamber further found that units of the 16th Krajina Brigade, operating under the command of the Zvornik Brigade, participated in the execution at Nezuk of 11 to 13 Bosnian Muslims on 19 July 1995.²⁰⁹

128. Finally, while the Trial Chamber found the evidence to be insufficient to establish the participation of the Drina Corps in the reburial of bodies from primary to secondary gravesites during the Autumn of 1995, it was satisfied, given the scale of the operation carried out within the Drina Corps zone of responsibility, that the Drina Corps must have at least known that this activity was occurring.²¹⁰

129. The Trial Chamber concluded that, given that the subordinate Brigades continued to operate under the Command of the Drina Corps, the Command itself, including Radislav Krstic as the Commander, must have known of their involvement in the executions as of 14 July 1995.²¹¹ The Trial Chamber found that Krstic knew that Drina Corps personnel and resources were being used to assist in those executions yet took no steps to punish his subordinates for that participation. ²¹² As the Trial Chamber put it, “there can be no doubt that, from the point he learned of the widespread and systematic killings and became clearly involved in their perpetration, he shared the genocidal intent to kill the men. This cannot be gainsaid given his informed participation in the executions through the use of Drina Corps assets.”²¹³ The Trial Chamber inferred the genocidal intent of the accused from his knowledge of the executions and his knowledge of the use of personnel and resources under his command to assist in those executions. However, knowledge on the part of Radislav Krstic, without more, is insufficient to support the further inference of genocidal intent on his part.

130. Further, at the Appeals hearing the Prosecution emphasised - as evidence of Krstic’s genocidal intent - the Trial Chamber’s findings of incidents in which he was heard to use derogatory language in relation to the Bosnian Muslims. The Trial Chamber accepted that “this type of charged language is commonplace amongst military personnel during war.”²¹⁴ The Appeals Chamber agrees with this assessment and finds that no weight can be placed upon Radislav Krstic’s use of derogatory language in establishing his genocidal intent.

     (e) The Trial Chamber’s other findings militating against a finding of genocidal intent

131. The Trial Chamber also made numerous findings that militate against a conclusion that Radislav Krstic had genocidal intent. It found that although Krstic was not a reluctant participant in the forcible transfer of the Bosnian Muslim population, he did appear concerned to ensure that the operation was conducted in an orderly fashion. He simply wanted the civilian population out of the area and he had no interest in mistreating them along the way. The Trial Chamber acknowledged, moreover, that the evidence could not establish that “Radislav Krstic himself ever envisaged that the chosen method of removing the Bosnian Muslims from the enclave would be to systematically execute part of the civilian population” and that he “appeared as a reserved and serious career officer who is unlikely to have ever instigated a plan such as the one devised for the mass execution of Bosnian Muslim men, following the take-over of Srebrenica in July 1995.”²¹⁵ The Trial Chamber found that “left to his own devices, it seems doubtful that Krsti c would have been associated with such a plan at all.”²¹⁶

132. The Trial Chamber also found that Radislav Krstic made efforts to ensure the safety of the Bosnian Muslim civilians transported out of Potocari. In an intercept of 12 July 1995, he was heard ordering that no harm must come to the civilians and, in the interview he gave in Potocari on 12 July 1995, guaranteed their safe transportation out.²¹⁷ The Trial Chamber found that Krstic showed similar concerns for the Bosnian Muslim civilians during the Zepa campaign. In an intercept of 25 July 1995 he was heard to order that a convoy of civilians bound for Kladanj be treated in a civilised manner, “so that nothing of the kind of problem we had before happens.”²¹⁸ The Trial Chamber concluded that while this intercept suggested that Radislav Krstic was anxious for the transfer to proceed properly, it also indicated that he was aware of problems with earlier transfers.²¹⁹ The conclusion that he was “aware of problems with earlier transfers,” and now took steps to avoid mistreatment, goes against the Trial Chamber’s conclusion that Krstic had been a willing participant in a joint criminal enterprise of genocide.

133. Finally, the Trial Chamber referred to the evidence of a Defence witness that on 13 July 1995 he had a conversation about the Bosnian Muslim column with Krstic, who had expressed the view that the VRS should allow the column to pass so that the situation could be “ended as it should.” The Trial Chamber relied on the evidence as indicating awareness on the part of Radislav Krstic that attempts were being made to capture the men from the column. The evidence, however, indicates that Krstic harboured no genocidal intent.²²⁰ His own particular intent was directed to a forcible displacement. Some other members of the VRS Main Staff harboured the same intent to carry out forcible displacement, but viewed this displacement as a step in the accomplishment of their genocidal objective. It would be erroneous, however, to link Krstic’s specific intent to carry out forcible displacement with the same intent possessed by other members of the Main Staff, to whom the forcible displacement was a means of advancing the genocidal plan.

     (f) The Appeals Chamber’s preliminary conclusion regarding the Trial Chamber’s finding of Radislav Krstic’s genocidal intent

134. As has been demonstrated, all that the evidence can establish is that Krstic was aware of the intent to commit genocide on the part of some members of the VRS Main Staff, and with that knowledge, he did nothing to prevent the use of Drina Corps personnel and resources to facilitate those killings. This knowledge on his part alone cannot support an inference of genocidal intent. Genocide is one of the worst crimes known to humankind, and its gravity is reflected in the stringent requirement of specific intent. Convictions for genocide can be entered only where that intent has been unequivocally established. There was a demonstrable failure by the Trial Chamber to supply adequate proof that Radislav Krstic possessed the genocidal intent. Krstic, therefore, is not guilty of genocide as a principal perpetrator.
     E. The Criminal Responsibility of Radislav Krstic: Aiding and Abetting Genocide

135. The issue that arises now is the level of Radislav Krstic’s criminal responsibility in the circumstances as properly established. All of the crimes that followed the fall of Srebrenica occurred in the Drina Corps zone of responsibility. There was no evidence that the Drina Corps devised or instigated any of the atrocities, and the evidence strongly suggested that the criminal activity was being directed by some members of the VRS Main Staff under the direction of General Mladic.²²¹ At the time the executions commenced Krstic was engaged in preparing for combat activities at Zepa and, from 14 July 1995 onwards, directing the attack itself.²²²

136. At trial the Defence had argued that, given the involvement of General Mladic, Radislav Krstic could do nothing to prevail upon General Mladic and stop the executions.²²³ The Trial Chamber however found evidence of General Mladic’s orders being challenged by the Drina Corps Command, and in particular, evidence of Krstic countering an order issued by the Main Staff.²²⁴ The Trial Chamber also found evidence of Radislav Krstic’s continued loyalty to General Mladic despite his knowledge of General Mladic’s role in the genocide at Srebrenica.²²⁵

137. As has been found above, it was reasonable for the Trial Chamber to conclude that, at least from 15 July 1995, Radislav Krstic had knowledge of the genocidal intent of some of the Members of the VRS Main Staff. Radislav Krstic was aware that the Main Staff had insufficient resources of its own to carry out the executions and that, without the use of Drina Corps resources, the Main Staff would not have been able to implement its genocidal plan.  Krstic knew that by allowing Drina Corps resources to be used he was making a substantial contribution to the execution of the Bosnian Muslim prisoners. Although the evidence suggests that Radislav Krstic was not a supporter of that plan, as Commander of the Drina Corps he permitted the Main Staff to call upon Drina Corps resources and to employ those resources. The criminal liability of Krstic is therefore more properly expressed as that of an aider and abettor to genocide, and not as that of a perpetrator.²²⁶ This charge is fairly encompassed by the indictment, which alleged that Radislav Krstic aided and abetted in the planning, preparation or execution of genocide against the Bosnian Muslims in Srebrenica.²²⁷

138. Krstic’s responsibility is accurately characterized as aiding and abetting genocide under Article 7(1) of the Statute, not as complicity in genocide under Article 4(3)(e). The charge of complicity was also alleged in the indictment, as Count 2.²²⁸ The Trial Chamber did not enter a conviction on this count, concluding that Radislav Krstic’s responsibility was that of a principal perpetrator.²²⁹ As the Trial Chamber observed, there is an overlap between Article 4(3) as the general provision enumerating punishable forms of participation in genocide and Article 7(1) as the general provision for criminal liability which applies to all the offences punishable under the Statute, including the offence of genocide.²³⁰ There is support for a position that Article 4(3) may be the more specific provision (lex specialis) in relation to Article 7(1).²³¹ There is, however, also authority indicating that modes of participation enumerated in Article 7(1) should be read, as the Tribunal’s Statute directs, into Article 4(3), and so the proper characterization of such individual’s criminal liability would be that of aiding and abetting genocide.²³²

139. The Appeals Chamber concludes that the latter approach is the correct one in this case. Article 7(1) of the Statute, which allows liability to attach to an aider and abettor, expressly applies that mode of liability to any “crime referred to in articles 2 to 5 of the present Statute,” including the offence of genocide prohibited by Article 4. Because the Statute must be interpreted with the utmost respect to the language used by the legislator, the Appeals Chamber may not conclude that the consequent overlap between Article 7(1) and Article 4(3)(e) is a result of an inadvertence on the part of the legislator where another explanation, consonant with the language used by the Statute, is possible. In this case, the two provisions can be reconciled, because the terms “complicity” and “accomplice” may encompass conduct broader than that of aiding and abetting.²³³ Given the Statute’s express statement in Article 7(1) that liability for genocide under Article 4 may attach through the mode of aiding and abetting, Radislav Krstic’s responsibility is properly characterized as that of aiding and abetting genocide.²³⁴

140. This, however, raises the question of whether, for liability of aiding and abetting to attach, the individual charged need only possess knowledge of the principal perpetrator’s specific genocidal intent, or whether he must share that intent. The Appeals Chamber has previously explained, on several occasions, that an individual who aids and abets a specific intent offense may be held responsible if he assists the commission of the crime knowing the intent behind the crime.²³⁵ This principle applies to the Statute’s prohibition of genocide, which is also an offence requiring a showing of specific intent. The conviction for aiding and abetting genocide upon proof that the defendant knew about the principal perpetrator’s genocidal intent is permitted by the Statute and case-law of the Tribunal.

141. Many domestic jurisdictions, both common and civil law, take the same approach with respect to the mens rea for aiding and abetting, and often expressly apply it to the prohibition of genocide. Under French law, for example, an aider and abettor need only be aware that he is aiding the principal perpetrator by his contribution,²³⁶ and this general requirement is applied to the specific prohibition of the crime of genocide.²³⁷ German law similarly requires that, in offences mandating a showing of a specific intent (dolus specialis), an aider and abettor need not possess the same degree of mens rea as the principal perpetrator, but only to be aware of the perpetrator’s intent.²³⁸ This general principle is applied to the prohibition of genocide in Section 6 of the German Code of Crimes Against International Law.²³⁹ The criminal law of Switzerland takes the same position, holding that knowledge of another’s specific intent is sufficient to convict a defendant for having aided a crime.²⁴⁰ Among the common law jurisdictions, the criminal law of England follows the same approach, specifying that an aider and abettor need only have knowledge of the principal perpetrator’s intent.²⁴¹ This general principle again applies to the prohibition of genocide under the domestic English law.²⁴² The English approach to the mens rea requirement in cases of aiding and abetting has been followed in Canada and Australia,²⁴³ and in some jurisdictions in the United States.²⁴⁴

142. By contrast, there is authority to suggest that complicity in genocide, where it prohibits conduct broader than aiding and abetting, requires proof that the accomplice had the specific intent to destroy a protected group. Article 4 of the Statute is most naturally read to suggest that Article 4(2)’s requirement that a perpetrator of genocide possess the requisite “intent to destroy” a protected group applies to all of the prohibited acts enumerated in Article 4(3), including complicity in genocide.²⁴⁵ There is also evidence that the drafters of the Genocide Convention intended the charge of complicity in genocide to require a showing of genocidal intent. The U.K. delegate in the Sixth Committee of the General Assembly “proposed adding the word ‘deliberate’ before ‘complicity,’” explaining that “it was important to specify that complicity must be deliberate, because there existed some systems where complicity required intent, and others where it did not. Several delegates (representing Luxembourg, Egypt, Soviet Union, Yugoslavia( said that this was unnecessary, because there had never been any doubt that complicity in genocide must be intentional. The United Kingdom eventually withdrew its amendment, ‘since it was understood that, to be punishable, complicity in genocide must be deliberate.’”²⁴⁶ The texts of the Tribunal’s Statute and of the Genocide Convention, combined with the evidence in the Convention’s travaux préparatoires, provide additional support to the conclusion that the drafters of the Statute opted for applying the notion of aiding and abetting to the prohibition of genocide under Article 4.²⁴⁷

143. The fact that the Trial Chamber did not identify individual members of the Main Staff of the VRS as the principal participants in the genocidal enterprise does not negate the finding that Radislav Krstic was aware of their genocidal intent. A defendant may be convicted for having aided and abetted a crime which requires specific intent even where the principal perpetrators have not been tried or identified.²⁴⁸ In Vasiljevic, the Appeals Chamber found the accused guilty as an aider and abettor to persecution without having had the alleged principal perpetrator on trial and without having identified two other alleged co-perpetrators.²⁴⁹ Accordingly, the Trial Chamber’s conviction of Krstic as a participant in a joint criminal enterprise to commit genocide is set aside and a conviction for aiding and abetting genocide is entered instead.²⁵⁰

144. The Appeals Chamber’s examination of Radislav Krstic’s participation in the crime of genocide has implications for his criminal responsibility for the murders of the Bosnian Muslim civilians under Article 3, violations of the laws or customs of war, and for extermination and persecution under Article 5, all of which arise from the executions of the Bosnian Muslims of Srebrenica between 13 and 19 July 1995. As the preceding factual examination has established, there was no evidence that Krstic ordered any of these murders, or that he directly participated in them. All the evidence can establish is that he knew that those murders were occurring and that he permitted the Main Staff to use personnel and resources under his command to facilitate them. In these circumstances the criminal responsibility of Radislav  Krstic is that of an aider and abettor to the murders, extermination and persecution, and not of a principal co-perpetrator.
     F. Radislav Krstic’s Criminal Responsibility for the Opportunistic Crimes Committed at Potocari

145. The Defence also contests the findings of the Trial Chamber in relation to Krstic’s criminal responsibility for the crimes committed on 12 and 13 July 1995 at Potocari. The Trial Chamber found that Radislav Krstic was a participant in a joint criminal enterprise to forcibly remove the Bosnian Muslim civilians from Potocari, and so incurred criminal responsibility for the murders, beatings and abuses committed there as natural and foreseeable consequences of that joint criminal enterprise. The Defence argues that these crimes were not natural and foreseeable consequences of the ethnic cleansing campaign, and that the Trial Chamber’s finding that Krstic was aware of them is contrary to the presumption of innocence.

146. According to the Defence, the evidence established that he was at Potocari on 12 July 1995 for at most two hours. There was no evidence to support the conclusion of the Trial Chamber that he had “first-hand knowledge that the refugees were being mistreated by VRS or other armed forces,” or that he witnessed the inhumane conditions of the White House and the killing of civilians there. The Defence argues that, to the contrary, the evidence establishes that there were orders from the military authorities to treat the civilians humanely.²⁵¹ The Defence refers to an order of 9 July 1995 issued by Mr. Karadzic as Supreme Commander of the Serb forces, which expressly provided that the civilian population was to be treated in accordance with the Geneva Conventions,²⁵² the evidence of Drazen Erdemovic that soldiers entering the town of Srebrenica were explicitly told not to fire at civilians,²⁵³ the intercept of 12 July 1995 in which Radislav Krstic stated that nothing must happen to the civilians transported from Potocari,²⁵⁴ and the statements he made in an interview given on 12 July 1995 during the bussing operation, that the Drina Corps had guaranteed the safety of the civilian population.²⁵⁵

147. The ethnic cleansing of the Bosnian Muslim civilians from Srebrenica was part of the Krivaja 95 operation in which Krstic was found to have played a leading role. Radislav Krstic knew that the shelling of Srebrenica would force tens of thousands of Bosnian Muslim civilians into Potocari because of the UN presence there. He was also well aware that there were inadequate facilities at Potocari to accommodate the Bosnian civilians.²⁵⁶ As such, the Trial Chamber found he was responsible for setting the stage at Potocari for the crimes that followed.²⁵⁷ Further, from his presence at two meetings convened by General Mladic at the Hotel Fontana he knew that the Bosnian Muslim civilians were in fact facing a humanitarian crisis at Potocari.²⁵⁸ There was, therefore, sufficient evidence for the Trial Chamber to be satisfied that Radislav Krstic was aware that the Bosnian Muslim civilians at Potocari would be subject to other criminal acts.

148. As the Defence has argued, the Trial Chamber could only establish that Radislav  Krstic was present in Potocari for one or two hours in the afternoon of 12 July. At this time he was involved in overseeing the bussing operation along with other VRS Officers, including General Mladic. However, VRS soldiers were generally mistreating the Bosnian Muslim civilians, and the situation facing the Bosnian Muslim civilians at Potocari was so obviously appalling that the Trial Chamber concluded that these conditions must have been apparent to him.²⁵⁹ Further, while he was found to have been physically present for only a short period of time, the evidence established that he played a principal role in procuring and monitoring the movement of the buses throughout that day.²⁶⁰ It also established that Drina Corp units under his command were heavily involved in organising and monitoring the transfer of the Bosnian civilians from Potocari. While the Trial Chamber found that this aspect of the operation appeared to be one of the more disciplined ones, and that it could not be satisfied that the Drina Corps was directly involved in any of the opportunistic crimes committed, the Trial Chamber nevertheless found that the Drina Corp units present at Potocari were also in a position to observe the pervasive mistreatment of the Bosnian Muslim civilians by other Serb forces. While the evidence established that on two occasions Krstic issued orders that the Bosnian Muslim civilians being transported on the buses were not to be harmed, there was no evidence of any attempts being made on the part of Radislav Krstic to ensure that these orders were respected.²⁶¹ There was also no evidence of Drina Corps units under his command taking any steps to ensure that the orders of their Commander were respected, or to report any contravention of these orders to him.

149. In these circumstances, the Defence’s argument that the crimes committed against the civilian population of Potocari were not natural and foreseeable consequences of the joint criminal enterprise to forcibly transfer the Bosnian civilians is not convincing. The Trial Chamber reasonably found that the creation of a humanitarian crisis in Potocari fell within the scope of the intended joint criminal enterprise to forcibly transfer the civilian population. The Trial Chamber expressly found that, “given the circumstances at the time the plan was formed, Radislav Krstic must have been aware that an outbreak of these crimes would be inevitable given the lack of shelter, the density of the crowds, the vulnerable condition of the refugees, the presence of many regular and irregular military and paramilitary units in the area and sheer lack of sufficient numbers of UN soldiers to provide protection.”²⁶² The Appeals Chamber agrees with this finding. Further, given Krstic’s role in causing the humanitarian crisis in Potocari, the issuance of orders directing that civilians not be harmed is not sufficient to establish that the crimes which occurred were not a natural and foreseeable consequence of the plan to forcibly transfer the civilians.

150. The Defence further argues that he cannot be held responsible for crimes that he was unaware were actually occurring. In making this argument, the Defence misunderstands the third category of joint criminal enterprise liability. For an accused to incur criminal responsibility for acts that are natural and foreseeable consequences of a joint criminal enterprise, it is not necessary to establish that he was aware in fact that those other acts would have occurred. It is sufficient to show that he was aware that those acts outside the agreed enterprise were a natural and foreseeable consequence of the agreed joint criminal enterprise, and that the accused participated in that enterprise aware of the probability that other crimes may result. As such, it was unnecessary for the Trial Chamber to conclude that Radislav Krstic was actually aware that those other criminal acts were being committed; it was sufficient that their occurrence was foreseeable to him and that those other crimes did in fact occur.

151. The Defence further asserts that Radislav Krstic should not be found guilty with respect to the crimes committed at Potocari on 12 and 13 July 1995 because General Zivanovic was Commander of the Drina Corps until 13 July 1995.²⁶³ This argument is inapposite. The responsibility of Radislav Krstic for the crimes committed at Potocari arose from his individual participation in a joint criminal enterprise to forcibly transfer civilians. The opportunistic crimes were natural and foreseeable consequences of that joint criminal enterprise. His conviction for these crimes does not depend upon the rank Krstic held in the Drina Corps staff at the time of their commission. Radislav Krstic’s appeal against his convictions for the opportunistic crimes that occurred at Potocari as a natural and foreseeable consequence of his participation in the joint criminal enterprise to forcibly transfer is dismissed.
     IV. THE DISCLOSURE PRACTICES OF THE PROSECUTION AND RADISLAV KRSTIC’S RIGHT TO A FAIR TRIAL

152. The Defence has alleged, as a further ground for appeal, that the Prosecutor’s disclosure practices violated Radislav Krstic’s right to a fair trial under Article 20 of the Statute.²⁶⁴ The Appeals Chamber will address each of the alleged practices which the Defence argues resulted in prejudice to its case, namely: withholding copies of exhibits for tactical reasons ; concealing a tape for later submission as evidence in cross-examination; various violations of Rule 68 (disclosure of exculpatory material); and the questionable credibility of the testimony of two witnesses.

153. As a general proposition, where the Defence seeks a remedy for the Prosecution’s breach of its disclosure obligations under Rule 68, the Defence must show (i) that the Prosecution has acted in violation of its obligations under Rule 68, and (ii ) that the Defence’s case suffered material prejudice as a result.²⁶⁵ In other words, 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 comply²⁶⁶ before considering whether a remedy is appropriate.²⁶⁷
     A. Withholding copies of exhibits for tactical reasons

154. Prior to trial, and pursuant to Rule 65ter(E) (as it then was),²⁶⁸ the Defence sought copies of exhibits upon which the Prosecution intended to rely at trial. The Prosecution refused to disclose these exhibits on the basis that it was not bound to do so absent a request for reciprocal disclosure under Rule 67( C).²⁶⁹ The matter was raised in a pre-trial conference, where the Defence was denied access to the documents in question.²⁷⁰ The exhibits relied upon by the Prosecution were subsequently disclosed on a piecemeal basis throughout the trial.

155. In refusing to order the Prosecution to disclose its exhibits prior to trial, the pre-trial Judge held that if the Prosecution was obliged to communicate all of its exhibits to the Defence, in the absence of any reciprocal disclosure by the Defence under Rule 67,²⁷¹ an inequality of arms would result.²⁷²

156. On appeal, the Defence argues that the pre-trial judge erred in finding that the Prosecution was not obliged by Rule 65ter to disclose copies of exhibits to the Defence prior to the commencement of trial, and that Krstic therefore did not receive a fair trial.²⁷³ The Defence seeks a re-trial as a remedy.²⁷⁴
     Was the Prosecution obliged to disclose copies of exhibits under Rule 65ter (as it was) at the time of trial?

157. The Defence makes its submission in two parts. The first part relies on the reasoning set out in a decision in Krajisnik & Plavsic,²⁷⁵ delivered after the closure of arguments in the Krstic trial. That decision held that Rule 65ter(E) obliged the Prosecution to disclose copies of exhibits to the Defence prior to trial.²⁷⁶

158. The second part of the Defence’s submission relies upon an amendment to Rule 65ter(E), which was adopted by the Judges of the Tribunal on 13 December 2001.²⁷⁷ That amendment altered the terms of Rule 65ter(E) so as to explicitly require the Prosecution to provide to the Defence copies of exhibits listed in pre-trial disclosure.²⁷⁸ The Defence submits that this subsequent amendment demonstrates that the decision in Krajisnik & Plavsic was adopted by the entire Tribunal.²⁷⁹

159. In contrast to the finding in the Krstic pre-trial conference, the Trial Chamber in Krajisnik & Plavsic held:

     The only way in which a defence can properly prepare for trial is by having notice in advance of the material on which the Prosecution intends to rely, including exhibits. The Prosecution, by not disclosing the documents prior to trial, places the defence in a position in which it will not be able to prepare properly; and it is this fact that is likely to lead to a violation of the principle of equality of arms.²⁸⁰

160. As such, that Trial Chamber held that Rule 65ter(E)(iii) required the Prosecution to disclose the actual exhibits appearing in the list, irrespective of any reciprocal pre-trial disclosure of exhibits by the Defence under Rule 67. The Trial Chamber in Krajisnik & Plavsic reasoned that, since Rule 65ter (E)(iii) referred to possible objections by the Defence to the authenticity of the exhibits, the Defence would need to have access to those exhibits in order to assess their authenticity.²⁸¹

161. The subsequent amendment of the Rule adopts this approach. At issue is whether the amendment to Rule 65ter reflects a consensus as to the proper interpretation of the former Rule, and whether the Trial Chamber in Krajisnik & Plavsic accurately described that interpretation.

162. The Appeals Chamber rejects the argument by the Defence that the amendment to Rule 65ter(E) binds the Appeals Chamber to adopt the interpretation submitted by the Defence. It is common for the Rules to be amended from time to time where those Rules are shown through practice to require clarification or modification. At most, the amendment of the Rule may cast light on the ambiguity of the former formulation of the Rule, but it does not necessarily assist in the interpretation of it. The new Rule 65ter(E) requires the Prosecution to provide the Defence with access to copies of the Prosecution’s exhibits prior to trial. Prior to the amendment, however, the actual scope of the Rule was open to interpretation, as shown by the contrasting decisions of the Krstic pre-trial conference and of the Trial Chamber in Krajisnik & Plavsic.

163. The text of the former Rule 65ter(E) did not expressly require exhibits themselves to be disclosed, but referred only to them being “listed”, suggesting that Rule 65ter(E) was not a means by which the disclosure of exhibits could be secured. The subsequent amendment to the Rules suggests, however, that the judges of the Tribunal have recognised that this practice may lead both the Defence and the Prosecution into difficulties when it comes to contesting the authenticity of exhibits. Where the parties contest exhibits, delays to the trial could occur while adjournments are granted in order to permit the parties to investigate those exhibits as they are tendered. As such, the subsequent amendment may have been a matter relevant to the efficient management of the trial itself, and not the result of any perceived unfairness to the Defence.

164. Furthermore, in this case the Prosecutor had reached an agreement with Defence Counsel – at the suggestion of the Trial Chamber - and established a regime for the disclosure of certain evidence.²⁸² In agreeing to the disclosure regime with the Defence, the Prosecution was in fact exceeding its obligations under the Rules in as much as those obligations had been determined pre-trial.²⁸³ At trial, the Defence did not object to this agreement²⁸⁴ and made no complaint regarding the disclosure regime.²⁸⁵ On appeal, the Prosecution argues that the Defence’s acceptance of this regime means that the Defence cannot now claim that the regime was unfair.

165. The Appeals Chamber does not agree that initial compliance by the Defence with the disclosure regime can be a basis for refusing to allow the Defence to argue on appeal that it was unfair. However, to succeed on this ground of appeal, the Defence would have to establish that it was prevented from properly investigating the authenticity of the exhibits by the Trial Chamber’s interpretation of the Rule, and that it suffered prejudice as a result. The Defence has not established this. On the contrary, the Trial Chamber did permit adjournments which allowed the Defence the opportunity to contest the authenticity of various exhibits tendered by the Prosecution.²⁸⁶

166. The Appeals Chamber accordingly dismisses this ground of appeal.
     B. Concealing a tape and its later submission as evidence in cross-examination

167. During the presentation of the Defence’s case at trial, the Prosecution introduced taped evidence that was played to Radislav Krstic during his cross-examination. The existence of the taped evidence had not been disclosed to the Defence until after the closure of both the Prosecution’s case and the evidence-in-chief of the accused,²⁸⁷ even though the Prosecution had been in possession of it for some time. The Defence had, however, been aware of the contents of the tape prior to its introduction to the Trial Chamber,²⁸⁸ and had not objected to it being played at the time.²⁸⁹

168. On this appeal, the Defence submits that a new trial should be ordered for two reasons: the alleged impossibility of the Trial Chamber ignoring the contents of the tape; and the Prosecution’s employment of so-called “sharp” trial tactics.²⁹⁰
     1. The alleged impossibility of the Trial Chamber ignoring the contents of the tape

169. The Defence argues that, once the tape had been played to the Trial Chamber, it became impossible for the Trial Chamber to ignore its contents when deciding on the guilt and sentence of the accused,²⁹¹ even though the Trial Chamber had excluded it from evidence.²⁹²

170. The Appeals Chamber does not accept this argument. The role of Judges as arbiters of both fact and of law is essential to the basic functioning of the Tribunal. Judges are frequently required to disregard evidence from their deliberations, not only as an incident to their role as Judges, but also as an acknowledged part of their judicial function in assessing the admissibility of evidence at trial. ²⁹³

171. The Defence has shown neither the existence of any prejudice²⁹⁴ resulting from the playing of the tape, nor that the contents of the tape were taken into account or relied upon by the Trial Chamber in arriving at its conclusions.²⁹⁵ There are no grounds to support the Defence’s submission that the playing of the tape influenced the Judges, and therefore no re-trial is warranted.
     2. “Sharp” Trial Tactics

172. The Defence argues that the manner in which the tape was used constituted a “sharp” trial tactic and that the Appeals Chamber should deter future prosecutorial misconduct by granting the Defence a re-trial.²⁹⁶ The Prosecution has defended its conduct by arguing that there is no directly applicable Rule prohibiting parties from introducing evidence in the manner described.²⁹⁷

173. The allegation made by the Defence is serious, and the Appeals Chamber treats it accordingly. The Defence suggests that the Prosecution deliberately declined to disclose the tape as an exhibit, deciding instead for tactical reasons to conceal it for use in cross-examination “so that the defence would not have an opportunity to explain it.”²⁹⁸ It is true that the contents of the tape were ultimately excluded by a Decision of the Trial Chamber.²⁹⁹ In that Decision, the Trial Chamber considered the Tribunal’s practice relating to the admission of rebuttal evidence.³⁰⁰ That practice precludes the admission of rebuttal evidence which could not reasonably have been anticipated.

174. The Decision of the Trial Chamber, together with the nature of the evidence in question and the amount of time in which the Prosecution possessed it, support the Defence’s submission. There appear to be sufficient grounds in the circumstances to question the propriety of the Prosecution as regards the disclosure of this evidence. Where counsel has engaged in such misconduct, the appropriate sanctions are provided by Rule 46 (Misconduct of Counsel). Given that the tape was excluded from consideration at trial, the Appeals Chamber concludes that the application of those Rules, and not a re-trial, is the correct way to address the conduct of the Prosecution as regards the concealed tape.

175. The Defence’s appeal for a re-trial on the grounds of concealing the tape is accordingly dismissed, and the Appeals Chamber considers the appropriate response to the Prosecution’s conduct below.
     C. The Various Violations of Rule 68

176. The Defence argues that the Prosecution violated its disclosure obligations under Rule 68 by: failing to disclose a number of witness statements containing exculpatory material; failing to disclose exculpatory material amongst other evidence without identifying that material as exculpatory; preventing the Defence from taking copies of exculpatory materials, and instead requiring the Defence to view the materials at the offices of the Prosecution; and failing to make two disclosures as soon as practicable.
     1. Alleged Breach of Rule 68 for failure to disclose witness statements containing exculpatory material

177. The Defence submits that a number of interviews with witnesses, conducted by the Prosecution prior to the Trial Chamber delivering Judgement, contained exculpatory evidence and that the failure of the Prosecution to disclose this material at that time constituted a breach of Rule 68.³⁰¹ The Prosecution conceded that of the ten witness statements filed by the Defence in its first Rule 115 Motion, six “fall within the ambit of Rule 68,”³⁰² but submits that the other four statements did not fall within the Rule, and that in any case, the Defence has been unable to establish prejudice resulting from the failure to disclose.³⁰³

     (a) Standard for characterisation of evidence as Rule 68 Material

178. The jurisprudence of the Tribunal mirrors the text of the Rule itself, and has established that material will fall within the ambit of Rule 68 if it tends to suggest the innocence or mitigate the guilt of the accused, or affects the credibility of Prosecution evidence.³⁰⁴ Material will affect the credibility of the Prosecution’s evidence if it undermines the case presented by the Prosecution at trial; material to be disclosed under Rule 68 is not restricted to material which is in a form which would be admissible in evidence.³⁰⁵ Rather, it includes all information which in any way tends to suggest the innocence or mitigate the guilt of an accused or may affect the credibility of Prosecution evidence, as well as material which may put an accused on notice that such material exists.³⁰⁶

179. The Prosecution argues that any interpretation of Rule 68 should draw upon the practice of domestic jurisdictions with comparable disclosure regimes.³⁰⁷ It relies heavily upon cases from the United States in arguing that, for a document to fall within Rule 68, it must be exculpatory “on its face.”³⁰⁸ The Appeals Chamber finds the meaning and purpose of Rule 68 to be sufficiently clear, and does not accept that the jurisprudence of the United States or other jurisdictions is relevant to determining its scope.

180. The disclosure of exculpatory material is fundamental to the fairness of proceedings before the Tribunal, and considerations of fairness are the overriding factor in any determination of whether the governing Rule has been breached. The 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 for application in the manner suggested by the Prosecution.

181. The Appeals Chamber will proceed with its consideration of the Rule 68-based arguments relating to exculpatory material on this basis.

     (b) Did the four witness statements constitute exculpatory evidence?

182. As discussed above, the disputed evidence relates to the statements of four protected witnesses submitted on appeal as additional evidence pursuant to Rule 115.³⁰⁹

183. In the first statement, it was said that Colonel Beara had directly requested the witness to prepare for the burial of Muslim men executed after the fall of Srebrenica. The Defence claims that this is evidence of the existence of a parallel chain of command, because Colonel Beara did not involve Radislav Krstic in the action.³¹⁰ The Appeals Chamber has already determined that the testimony of this witness does not support the Defence’s submissions.³¹¹

184. Regarding the second statement, the Defence submits that it was an additional example of General Mladic and the Main Staff bypassing the traditional chain of command, thereby distancing Krstic from the events that occurred.³¹² The Appeals Chamber has found that this evidence does not constitute direct evidence that the Main Staff bypassed Radislav Krstic,³¹³ and that in any event, this evidence could not have altered the verdict of the Trial Chamber.³¹⁴

185. The third statement is from a witness who allegedly told the Prosecution that the prisoners in Bratunac were under the control of the military’s Security Service.³¹⁵ The Defence argues that this evidence supports Radislav Krstic’s position that he had no control over the prisoners, and that the Security Service acted independently of the Corps Command.³¹⁶ The Appeals Chamber has already found that this evidence would not have made a difference to the verdict of the Trial Chamber, in that it does not in any way suggest that the Drina Corps did not or would not have known of those events.³¹⁷

186. The fourth statement is that of a witness who indicated that while the order appointing Krstic to the position of Corps Commander was dated 13 July 1995, this did not necessarily imply that Radislav Krstic took up his duties at that time, nor that he had to cover the duty on that day.³¹⁸ The Appeals Chamber has already determined that this evidence is insignificant in light of the abundant evidence considered by the Trial Chamber that Krstic in fact assumed his command on 13 July 1995.³¹⁹

     (c) Remedy

187. As a potential remedy, the Defence has submitted that the Prosecution’s failure to disclose material exculpatory under Rule 68 warrants a re-trial.³²⁰ In addition, where an accused has been prejudiced by a breach of Rule 68, that prejudice may be remedied where appropriate through the admission of additional evidence on appeal under Rule 115.³²¹ On this appeal, the evidence in question did not justify its admission under Rule 115,³²² and the Appeals Chamber finds that it does not justify a re-trial. Nevertheless, it remains the fact that the Defence was able to seek admission of the material as additional evidence. It has therefore not shown that Radislav Krstic have suffered any prejudice. The Defence’s petition is therefore dismissed.

188. To the extent that the Appeals Chamber has found that the Prosecution has failed to respect its obligations under the Rules, those breaches fall to be addressed by the appropriate remedies, namely Rule 46 (Misconduct of Counsel) and Rule 68bis (Failure to Comply with Disclosure Obligations).
     2. Alleged Breach of Rule 68 for the Prosecution’s failure to identify evidence disclosed under Rule 68 as being exculpatory

189. The Defence submits that the Rule 68 disclosures of 25 June 2000 and 5 March 2001 made during trial were buried beneath other material provided at the time, and that the failure of the Prosecution to identify the disclosed material as being disclosed under Rule 68 breached the spirit and letter of that Rule.³²³ In response, the Prosecution argues that there is no specific requirement obliging it to indicate the provision in accordance with which a disclosure of documents occurs, or to identify the specific material disclosed as exculpatory.³²⁴

190. The Appeals Chamber agrees with the Prosecution that Rule 68 does not require the Prosecution to identify the material being disclosed to the Defence as exculpatory. The jurisprudence of the Tribunal shows that while some Trial Chambers have recognised that it would be fairer for the Prosecution to do so,³²⁵ there is no prima facie requirement, absent an order of the Trial Chamber to that effect, that it must do so.

191. However, the fact that there is no prima facie obligation on the Prosecution to identify the disclosed Rule 68 material as exculpatory does not prevent the accused from arguing, as a ground of appeal, that he suffered prejudice as a result of the Prosecution’s failure to do so.

192. In this case, the Appeals Chamber has not been persuaded by the Defence that the failure of the Prosecution to identify exculpatory evidence it disclosed resulted in any prejudice to the Defence. The Defence had both sufficient time in which to analyse the material, and the opportunity to challenge it during cross-examination.

193. This ground of appeal accordingly is dismissed.
     3. Whether Rule 68 requires the Prosecution to allow the Defence to take copies of exculpatory material

194. The Defence submits that, in only being permitted to view copies of exculpatory evidence in the Prosecution’s office, and being refused copies of the materials, the Prosecution breached Rule 68, as well as its obligation to act as a “minister of justice.”³²⁶

195. On a plain reading of Rule 68, the Prosecution is merely obliged to disclose the existence of Rule 68 material, not to provide the actual material itself. If the Defence had demonstrated that the preparation of its case had been prejudiced by the Defence only being able to view the Rule 68 material held by the Prosecutor, then it should have brought this prejudice to the attention of the Trial Chamber. The Prosecution did disclose the existence of this material. The Defence has not persuaded the Appeals Chamber that it did indeed suffer any prejudice during the trial, and this ground of appeal is dismissed.
     4. Whether two disclosures were made “as soon as practicable”

196. The Defence submits that certain disclosures³²⁷ were not made “as soon as practicable,” as required by Rule 68. For example, the disclosures of 25 June 2000 occurred over two years after the Prosecution came into possession of the evidence, and more than three months after the trial had begun.³²⁸ The disclosures of 5 March 2001 occurred over three months after the Prosecution came into possession of the evidence.³²⁹ The Defence has also alleged that the Prosecution deliberately withheld evidence in order eventually to avail itself of the reciprocal discovery mechanism of Rules 67(B) and 67(C). ³³⁰

197. 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.³³¹ Nevertheless, the Prosecution did take an inordinate amount of time before disclosing material in this case, and has failed to provide a satisfactory explanation for the delay. The Prosecution’s submission that the Defence had enough time to consider the material³³² may allay allegations of prejudice to the Defence’s case, but it does not contradict the allegation that the Prosecution breached Rule 68 by not providing the material as soon as practicable. It is not for the Prosecution to determine the amount of time the Defence requires to conduct its case.

198. In the absence of sufficient evidence, the Appeals Chamber decides not to consider whether or not the Prosecution deliberately withheld evidence from the Defence as a trial tactic. However, the Appeals Chamber does find that the disclosures of 25 June 2000 and 5 March 2001 were not made as soon as practicable, and that the Prosecution has, as a result, breached Rule 68.

199. As has already been discussed,³³³ a prerequisite for the remedy sought on appeal for breaches of Rule 68 is proof of consequential prejudice to the Defence. The Defence has not established any such prejudice from the delayed disclosures by the Prosecution.

200. The Appeals Chamber does, however, find that the Prosecution did not meet its obligations under the Rules. The consequences are governed by Rule 46 (Misconduct of Counsel) and Rule 68bis (Failure to Comply with Disclosure Obligations ).³³⁴
     D. The Questionable Credibility of the Witnesses: Sefer Halilovic and Enver Hadzihasanovic

201. The Trial Chamber called witnesses proprio motu to testify at trial pursuant to its powers under Rule 98.³³⁵ Two of the witnesses were at the time the subject of separate Prosecution investigations, a fact which – along with the evidence from those investigations - was disclosed to the Trial Chamber, but not to the Defence.³³⁶

202. The first witness, Enver Hadzihasanovic, was subsequently indicted in a sealed indictment on 5 July 2001.³³⁷ Mr. Hadzihasanovic’s indictment was made public on the same day (2 August 2001) that the Judgement of the Trial Chamber in this case was rendered. The second witness, Sefer Halilovic, was indicted in a sealed indictment on 10 September 2001.³³⁸

203. The Defence argues that the Prosecution’s failure to disclose information relating to the investigations of these two witnesses constituted a breach of Rule 68,³³⁹ in that the information may have affected the credibility of the witnesses concerned. The Prosecution responds that the evidence in question was not exculpatory within the terms of Rule 68,³⁴⁰ and that in any event it fulfilled its obligations by disclosing the relevant information to the Trial Chamber. ³⁴¹

204. While the Prosecution did disclose to the Trial Chamber the fact that the two witnesses were under investigation, it has not been established that the Prosecution also disclosed to the Trial Chamber any other evidence that may have been of relevance to the credibility of those same witnesses. The Appeals Chamber does not accept that evidence called proprio motu by a Trial Chamber can relieve the Prosecution of its obligation under Rule 68 in relation to that evidence. The scope of Rule 68 is clear: It applies to any material known to the Prosecution that either suggests the innocence or mitigates the guilt of the accused, or evidence that may affect the credibility of Prosecution evidence.

205. The Prosecution has submitted that where a witness is called by the Trial Chamber proprio motu under Rule 98 to give evidence, the favourable or unfavourable nature of that evidence will ordinarily only be known after the evidence is given. As such, the Prosecution argues that a finding for the Defence in this case would impose a burden on the Prosecution to disclose any information in its possession which could conceivably be used for the impeachment of a witness, and that such a burden would be too onerous.³⁴²

206. The Appeals Chamber cannot see the relevance of this argument. The Prosecution’s obligation to disclose under Rule 68 is a continuing obligation,³⁴³ precisely because the relevance to the case of certain material held by the Prosecution may not be immediately clear. 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.

207. The testimony of the two witnesses concerned was not relevant merely to peripheral background matters, as the Prosecution suggests.³⁴⁴ The testimony of Mr. Halilovic was favourable to the Prosecution’s case because it supported the conclusions that the Serbian forces possessed a genocidal intent during their operations in the Drina River valley, and also that the men who fled in the column were doing so as a result of fear.³⁴⁵ This climate of fear was later held by the Trial Chamber to have been part of the purpose of a joint criminal enterprise.³⁴⁶ The testimony of Mr. Hadzihasanovic was favourable in part to the Prosecution’s case for the same reasons.³⁴⁷

208. In light of the fact that the Prosecution was adhering to an order of the Trial Chamber that it disclose the witness statements only to the Trial Chamber under seal and ex parte,( footnote 348 ) the Appeals Chamber cannot find fault with the conduct of the Prosecution. Furthermore, the Defence has failed to demonstrate that its case was materially prejudiced as a result of the reliance by the Trial Chamber on the testimony of these witnesses. The Defence itself had in fact relied on some of this testimony in its closing submissions. As the Trial Chamber was aware of the circumstances in which this evidence was handled, and notwithstanding the pertinence of this testimony to the Prosecution’s case, the Appeals Chamber finds that there could have been no prejudice to the Defence’s case.

209. As such, the Appeals Chamber finds that no prejudice has been suffered by the Defence. This ground of appeal is dismissed.
     E. Addressing the Conduct of the Prosecution

210. It remains for the Appeals Chamber to consider what disciplinary avenues, if any, are the appropriate means of addressing the conduct of the Prosecution in this case.

211. The right of an accused to a fair trial is a fundamental right, protected by the Statute, and Rule 68 is essential for the conduct of fair trials before the Tribunal. Where an accused can only seek a remedy for the breaches of a Rule in exceptional circumstances – in particular where the very enforcement of that Rule relies for its effectiveness upon the proper conduct of the Prosecution - any failure by the Appeals Chamber to act in defence of the Rule would endanger its application. The Appeals Chamber has a number of options at its disposal in these circumstances, based on Rule 46 (Misconduct of Counsel) and Rule 68bis (Failure to Comply with Disclosure Obligations).

212. Rule 68bis in particular is specific to disclosure obligations, and provides the Tribunal with a broad discretionary power to impose sanctions on a defaulting party, proprio motu if necessary.

213. The Appeals Chamber notes that the Prosecution has already described in some detail why certain materials were not disclosed, including declarations by Senior Trial Attorneys in the Office of the Prosecutor.³⁴⁹ While the disclosure practices of the Prosecution in this case have on occasion fallen short of its obligations under the applicable Rules, the Appeals Chamber is unable to determine whether the Prosecution deliberately breached its obligations.

214. In light of the absence of material prejudice to the Defence in this case, the Appeals Chamber does not issue a formal sanction against the Prosecution for its breaches of its obligations under Rule 68. The Appeals Chamber is persuaded that, on the whole, the Prosecution acted in good faith in the implementation of a systematic disclosure methodology which, in light of the findings above, must be revised so as to ensure future compliance with the obligations incumbent upon the Office of the Prosecutor. This finding must not however be mistaken for the Appeals Chamber’s acquiescence in questionable conduct by the Prosecution.

215. In light of the allegations of misconduct being made against the Prosecution in this case, the Appeals Chamber orders that the Prosecutor investigate the complaints alleged and take appropriate action. The Appeals Chamber will not tolerate anything short of strict compliance with disclosure obligations, and considers its discussion of this issue to be sufficient to put the Office of the Prosecutor on notice for its conduct in future proceedings.
     V. THE TRIAL CHAMBER’S ANALYSIS OF CUMULATIVE CONVICTIONS

216. The Prosecution challenges the Trial Chamber’s non-entry, as impermissibly cumulative, of Radislav Krstic’s convictions for extermination and persecution of the Bosnian Muslims of Srebrenica between 13 and 19 July 1995, and for murder and inhumane acts as crimes against humanity committed against the Bosnian Muslim civilians in Potocari between 10 and 13 July 1995. The Trial Chamber disallowed convictions for extermination and persecution as impermissibly cumulative with Krstic’s conviction for genocide. It also concluded that the offences of murder and inhumane acts as crimes against humanity are subsumed within the offence of persecution where murder and inhumane acts form the underlying acts of the persecution conviction.

217. The Defence urges a dismissal of the Prosecution’s appeal because the Prosecution does not seek an increase of the sentence in the event its appeal is successful.³⁵⁰ As the Appeals Chamber emphasised, however, the import of cumulative convictions is not limited to their impact on the sentence. Cumulative convictions impose additional stigma on the accused and may imperil his eligibility for early release.³⁵¹ On the other hand, multiple convictions, where permissible, serve to describe the full culpability of the accused and to provide a complete picture of his criminal conduct.³⁵² The Prosecution’s appeal is therefore admissible notwithstanding the fact that it does not challenge the sentence.
     A. Applicable Law

218. The established jurisprudence of the Tribunal is that multiple convictions entered under different statutory provisions, but based on the same conduct, are permissible only if each statutory provision has a materially distinct element not contained within the other.³⁵³ An element is materially distinct from another if it requires proof of a fact not required by the other element.³⁵⁴ Where this test is not met, only the conviction under the more specific provision will be entered.³⁵⁵ The more specific offence subsumes the less specific one, because the commission of the former necessarily entails the commission of the latter.
     B. Conviction for Extermination as a Crime Against Humanity

219. The first vacated conviction that the Prosecution seeks to reinstate is the conviction for extermination under Article 5 based on the killing of the Bosnian Muslim men of Srebrenica.³⁵⁶ The Trial Chamber held that this conviction was impermissibly cumulative with Radislav Krstic’s conviction for genocide under Article 4, which was based on the same facts.³⁵⁷ The Prosecution argues that this decision rests on an erroneous premise, namely that Article 5’s requirement for the enumerated crimes to be part of a widespread or systematic attack against a civilian population is subsumed within the statutory elements of genocide.³⁵⁸

220. This issue was confronted by the ICTR Appeals Chamber in Musema. There, the Appeals Chamber arrived at a conclusion contrary to the one reached by the Trial Chamber in this case. Echoing the Prosecution’s argument here, the ICTR Appeals Chamber permitted convictions for genocide and extermination based on the same conduct because “[g]enocide requires proof of an intent to destroy, in whole or in part, a national, ethnical, racial or religious group, (which( is not required by extermination,” while “[e]xtermination as a crime against humanity requires proof that the crime was committed as a part of a widespread or systematic attack against a civilian population, which proof is not required in the case of genocide.”³⁵⁹

221. The Trial Chamber in this case concluded that the requirement of a widespread and systematic attack against a civilian population was subsumed within the genocide requirement that there be an intent to destroy, in whole or in part, a national, ethnical, racial or religious group.³⁶⁰ In the Trial Chamber’s opinion, in order to satisfy this intent requirement, a perpetrator of genocide must commit the prohibited acts “in the context of a manifest pattern of similar conduct,” or those acts must “themselves constitute a conduct that could in itself effect the destruction of the group, in whole or part, as such.”³⁶¹ Because this requirement excluded “random or isolated acts,” the Trial Chamber concluded that it duplicated the requirement of Article 5 that a crime against humanity, such as extermination, form a part of a widespread or systematic attack against a civilian population.³⁶²

222. The intent requirement of genocide, however, contains none of the elements the Trial Chamber read into it. As the Trial Chamber correctly acknowledged, the intent requirement of genocide is the intent to destroy, in whole or in part, a group enumerated both in Article 4 and in the Genocide Convention.³⁶³ This intent differs in several ways from the intent required for a conviction for extermination.

223. The offence of extermination as a crime against humanity requires proof that the proscribed act formed a part of a widespread or systematic attack on the civilian population, and that the perpetrator knew of this relationship.³⁶⁴ These two requirements are not present in the legal elements of genocide. While a perpetrator’s knowing participation in an organized or extensive attack on civilians may support a finding of genocidal intent, it remains only the evidentiary basis from which the fact-finder may draw this inference. The offence of genocide, as defined in the Statute and in international customary law, does not require proof that the perpetrator of genocide participated in a widespread and systematic attack against civilian population.³⁶⁵

224. In reasoning otherwise, the Trial Chamber relied on the definition of genocide in the Elements of Crimes adopted by the ICC. This definition, stated the Trial Chamber, “indicates clearly that genocide requires that ‘the conduct took place in the context of a manifest pattern of similar conduct.’”³⁶⁶ The Trial Chamber’s reliance on the definition of genocide given in the ICC’s Elements of Crimes is inapposite. As already explained, the requirement that the prohibited conduct be part of a widespread or systematic attack does not appear in the Genocide Convention and was not mandated by customary international law.³⁶⁷ Because the definition adopted by the Elements of Crimes did not reflect customary law as it existed at the time Krstic committed his crimes, it cannot be used to support the Trial Chamber’s conclusion.

225. The Trial Chamber also concluded that the definitions of intent for extermination and genocide “both require that the killings be part of an extensive plan to kill a substantial part of a civilian population.”³⁶⁸ The Appeals Chamber has explained, however, that “the existence of a plan or policy is not a legal ingredient of the crime” of genocide.³⁶⁹ While the existence of such a plan may help to establish that the accused possessed the requisite genocidal intent, it remains only evidence supporting the inference of intent, and does not become a legal ingredient of the offence.³⁷⁰ Similarly, the Appeals Chamber has rejected the argument that the legal elements of crimes against humanity (which include extermination) require a proof of the existence of a plan or policy to commit these crimes.³⁷¹ The presence of such a plan or policy may be important evidence that the attack against a civilian population was widespread or systematic, but it is not a legal element of a crime against humanity. As neither extermination nor genocide requires the proof of a plan or policy to carry out the underlying act, this factor cannot support the Trial Chamber’s conclusion that the offence of extermination is subsumed in genocide.

226. Finally, the intent requirement of genocide is not limited to instances where the perpetrator seeks to destroy only civilians. Provided the part intended to be destroyed is substantial, and provided that the perpetrator intends to destroy that part as such, there is nothing in the definition of genocide prohibiting, for example, a conviction where the perpetrator killed detained military personnel belonging to a protected group because of their membership in that group. It may be that, in practice, the perpetrator’s genocidal intent will almost invariably encompass civilians, but that is not a legal requirement of the offence of genocide. As the Appeals Chamber explained, the inquiry into whether two offences are impermissibly cumulative is a question of law.³⁷² The fact that, in practical application, the same conduct will often support a finding that the perpetrator intended to commit both genocide and extermination does not make the two intents identical as a matter of law.

227. The Trial Chamber’s conclusion that convictions for extermination under Article 5 and genocide under Article 4 are impermissibly cumulative was, accordingly, erroneous.
     C. Conviction for Persecution as a Crime Against Humanity

228. The Prosecution next argues that the Trial Chamber erred in setting aside Krstic’s conviction for persecution under Article 5 for the crimes resulting from the killings of Bosnian Muslims of Srebrenica.³⁷³ The Trial Chamber concluded, for the same reasons it disallowed the conviction for extermination, that the offence of persecution as a crime against humanity was impermissibly cumulative with the conviction for genocide.³⁷⁴

229. Persecution and extermination, as crimes against humanity under Article 5, share the requirement that the underlying act form a part of a widespread or systematic attack against a civilian population and that it be perpetrated with the knowledge of that connection. The analysis above concerning extermination therefore applies also to the relationship between the statutory elements of persecution and genocide. The offence of genocide does not subsume that of persecution. The Trial Chamber’s conclusion to the contrary was erroneous.
     D. Convictions for Murder and Inhumane Acts as Crimes Against Humanity

230. The Prosecution seeks reinstatement of two other convictions. The first is the conviction for murder, as a crime against humanity, of Bosnian Muslim civilians in Potocari.³⁷⁵ The Trial Chamber set aside this conviction as impermissibly cumulative with the conviction for persecution perpetrated through murder of these civilians.³⁷⁶ The second is the conviction for inhumane acts, based on the forcible transfer of Bosnian Muslim civilians to Potocari.³⁷⁷ The Trial Chamber concluded that this conviction was subsumed within the conviction for persecution based on the inhumane acts of forcible transfer.³⁷⁸

231. The Appeals Chamber addressed these two issues in its recent decisions in Vasiljevic and Krnojelac. In Vasiljevic, the Appeals Chamber disallowed convictions for murder and inhumane acts under Article 5 as impermissibly cumulative with the conviction for persecution under Article 5 where the persecution was accomplished through murder and inhumane acts.³⁷⁹ The Appeals Chamber concluded that the offence of persecution is more specific than the offences of murder and inhumane acts as crimes against humanity because, in addition to the facts necessary to prove murder and inhumane acts, persecution requires the proof of a materially distinct element of a discriminatory intent in the commission of the act.³⁸⁰ The same result was reached by the Appeals Chamber in Krnojelac, which concluded that “the crime of persecution in the form of inhumane acts subsumes the crime against humanity of inhumane acts.”³⁸¹

232. The Prosecution argues at length that the crime of persecution can be committed in many ways other than through murders or inhumane acts.³⁸² This observation is accurate, but entirely inapposite. Where the charge of persecution is premised on murder or inhumane acts, and such charge is proven, the Prosecution need not prove any additional fact in order to secure the conviction for murder or inhumane acts as well. The proof that the accused committed persecution through murder or inhumane acts necessarily includes proof of murder or inhumane acts under Article 5. These offences become subsumed within the offence of persecution.³⁸³

233. The Trial Chamber correctly recognised this principle, and the Prosecution’s appeal on these issues is therefore dismissed.
     VI. SENTENCING

234. The Trial Chamber imposed on Radislav Krstic a single sentence of 46 years’ imprisonment.³⁸⁴ Both the Prosecution and the Defence have appealed this sentence.³⁸⁵
     A. Submissions

235. The Prosecution argues that the sentence imposed by the Trial Chamber was inadequate because it failed properly to account either for the gravity of the crimes committed or for the participation of Radislav Krstic in those crimes;³⁸⁶ is inconsistent with ICTR jurisprudence in comparable genocide cases;³⁸⁷ is based on Krstic’s “palpably lesser guilt”;³⁸⁸ and because the Trial Chamber erred in finding that premeditation was inapplicable as an aggravating factor in this case.³⁸⁹ Consequently, the Prosecution argues that the Trial Chamber imposed a sentence beyond its discretion,³⁹⁰ and that the sentence should be increased to life imprisonment, with a minimum of 30 years.³⁹¹

236. The Defence argues that in imposing the sentence, the Trial Chamber failed to have due regard to the sentencing practice of the former Yugoslavia and the courts of Bosnia and Herzegovina³⁹² and to give adequate weight to what the Defence submits are mitigating circumstances.³⁹³ The Defence accordingly argues that the sentence should be reduced to a maximum of 20 years.³⁹⁴
     B. Discussion

237. The Appeals Chamber has overturned Krstic s conviction as a participant in a joint criminal enterprise to commit genocide. It has also disagreed with the Trial Chamber that he was a direct participant in the murders of the Bosnian Muslims under Article 3, and in extermination and persecution under Article 5, all of which arise from the executions of the Bosnian Muslims of Srebrenica between 13 and 19 July 1995. In relation to each of these offences the Appeals Chamber has instead concluded that Krstic aided and abetted the commission of these crimes.

238. In finding Krstic criminally responsible as an aider and abettor, the Appeals Chamber concluded that the contribution by the Drina Corps personnel and assets under his command was a substantial one. Indeed, without that assistance, the Main Staff would not have been able to carry out its plan to execute the Bosnian Muslims of Srebrenica.  Krstic knew that buses he had assisted in procuring for the transfer of the women, children and elderly were being used to transfer the males to various detention sites. He also knew that Drina Corps vehicles and personnel were being used to scout for detention sites and to escort and guard the Bosnian Muslim prisoners at various detention sites. He also knew that heavy vehicles and equipment belonging to the Drina Corps under his command were being used to further the execution of the Bosnian Muslim civilians. This knowledge and these modes of assistance constitute a substantial contribution to the commission of the crimes as required for a conviction for aiding and abetting the genocide of the Bosnian Muslims of Srebrenica.

239. The Appeals Chamber concluded that Radislav Krstic willingly participated in the joint criminal enterprise resulting in the humanitarian crisis at Potocari, and was aware that a natural and reasonable consequence of that humanitarian crisis was that crimes would be committed against the civilian population. The Appeals Chamber has therefore upheld Krstic’s convictions for persecution for murders, cruel and inhumane treatment, terrorising the civilian population, forcible transfer and destruction of personal property of Bosnian Muslim civilians arising out of the treatment of the Bosnian Muslim civilians at Potocari. While upholding this conviction, the Appeals Chamber has acknowledged, however, that Radislav Krstic and the Drina Corps under his command did not personally commit any crimes against the Bosnian Muslim civilians, other than assist in the organisation of the forcible transfer. Notably, it was established that Krstic was only present in Potocari for an hour or two at the most, and there was no evidence that he actually witnessed any of the crimes being committed against the Bosnian Muslim civilians, or that his subordinates in the Drina Corps directly witnessed them and reported to Krstic. Furthermore, the Trial Chamber accepted that the transfer of the Bosnian Muslim civilians organised by the Drina Corps was a disciplined and orderly operation, and that Krstic specifically ordered that no harm was to befall the Bosnian Muslim civilians being transferred forcibly.

240. In light of the findings in relation to Radislav Krstic’s form of responsibility, an adjustment of the sentence will be necessary in any event. It is nevertheless appropriate first to consider and resolve the issues relating to sentencing raised on appeal.³⁹⁵

241. The relevant provisions on sentencing are Articles 23 and 24 of the Statute, and Rules 100 to 106 of the Rules of Procedure and Evidence. These provisions constitute factors to be taken into consideration by the Trial Chamber when deciding a sentence on conviction.³⁹⁶ They do not constitute binding limitations on a Chamber’s discretion to impose a sentence,³⁹⁷ which must always be decided according to the facts of each particular case.³⁹⁸

242. The jurisprudence of the ICTY and ICTR has also generated a body of relevant factors to consider during sentencing.³⁹⁹ The Appeals Chamber has emphasised, however, that it is “inappropriate to set down a definitive list of sentencing guidelines for future reference,”⁴⁰⁰ given that the imposition of a sentence is a discretionary decision. The Appeals Chamber has further explained that only a “discernible error” in the exercise of that sentencing discretion by the Trial Chamber may justify a revision of the sentence.⁴⁰¹

243. It is therefore for the Appeals Chamber to determine whether the Trial Chamber committed a discernible error in imposing a sentence of 46 years on Radislav Krstic.
     1. The arguments concerning the gravity of the crimes Radislav Krstic has committed and his participation therein

244. Both the Defence and the Prosecution have submitted arguments concerning the gravity of the crimes alleged. The Prosecution argues that in light of the gravity of the crimes Krstic committed, he should be sentenced to life imprisonment.⁴⁰² The Defence focuses on the Trial Chamber’s recognition of Krstic’s limited participation in the events of July 1995 and submits that the sentence was unduly harsh.⁴⁰³

245. As discussed above, the Appeals Chamber will consider arguments relating to sentencing only insofar as they allege the commission of a discernible error in the Trial Chamber’s exercise of its discretion.⁴⁰⁴ As to the level of Krstic’s participation in these crimes, the Appeals Chamber has found his criminal responsibility to be of lower magnitude than that found by the Trial Chamber, and the impact of this finding is addressed below.
     2. The arguments for consistent sentencing practice

246. The Prosecution argues, relying on the Jelisic Appeal Judgement, that the Trial Chamber erred in the exercise of its discretion by imposing a sentence that is not consistent with sentences imposed for similar offences.⁴⁰⁵ In Jelisic, the Appeals Chamber did indeed recognise that a sentence “may be thought to be capricious or excessive if it is out of reasonable proportion with a line of sentences passed in similar circumstances for the same offences.”⁴⁰⁶

247. The Appeals Chamber in the Jelisic case also held, however, that similar cases do not provide “a legally binding tariff of sentences but a pattern which emerges from individual cases,” and that “(w(here there is … disparity, the Appeals Chamber may infer that there was disregard of the standard criteria by which sentence should be assessed, as prescribed by the Statute and set out in the Rules. But it is difficult and unhelpful to lay down a hard and fast rule on the point ; there are a number of variable factors to be considered in each case.”⁴⁰⁷

248. The conclusion of the Appeals Chamber in the Jelisic case, as well as in others,⁴⁰⁸ is unequivocal: The sentencing practice of the Tribunal in cases involving similar circumstances is but one factor which a Chamber must consider when exercising its discretion in imposing a sentence.⁴⁰⁹ The decision is a discretionary one, turning on the circumstances of the particular case. “What is important is that due regard is given to the relevant provisions of the Statute and the Rules, [the] jurisprudence of the Tribunal and ICTR, and the circumstances of the case.”⁴¹⁰

249. The Prosecution also argues that the Trial Chamber erred by failing to consider carefully the ICTR jurisprudence relating to sentencing.⁴¹¹ Although the Trial Chamber’s analysis of the ICTR jurisprudence relating to sentencing was not as extensive or detailed as that now provided by the Prosecution, the Trial Chamber did expressly consider that jurisprudence.⁴¹² The Appeals Chamber concludes that the sentence of 46 years’ imprisonment imposed by the Trial Chamber – the highest fixed-term sentence imposed by this Tribunal to date⁴¹³ – sufficiently reflected the gravity of the crimes of which Radislav Krstic was convicted. In addition, a review of ICTR sentencing practice in comparable cases does not reveal a fixed rule requiring the imposition of a specified sentence for genocide.⁴¹⁴ The Trial Chamber’s sentence was therefore consistent with the practice of the ICTR.

250. In any event, and as already explained, the sentencing practice in comparable cases is but one of several factors a Chamber must consider in determining an appropriate sentence. The Trial Chamber has a broad discretion to assess that factor, depending on the particular circumstances of the case before it. In this case, the Trial Chamber imposed on Krstic a sentence which it deemed appropriate on the basis of the particular circumstances surrounding his conduct in and around Srebrenica in July 1995. The Trial chamber did not commit a discernible error in the exercise of its sentencing discretion.

251. Given that the Appeals Chamber has reduced the level of criminal responsibility in this case to aiding and abetting genocide, the submission of the Prosecution in this regard is in any event moot.

252. The Prosecution’s appeal on this ground is therefore dismissed.
     3. The argument relating to “palpably lesser guilt”

253. The Trial Chamber held that Radislav Krstic “is guilty, but his guilt is palpably lesser than others who devised and supervised the executions all through (the relevant period(.”⁴¹⁵ The Prosecution argues that the Trial Chamber erred in deciding that Krstic deserved a lesser sentence than other perpetrators of these crimes whose guilt was not adjudicated in this case. The Prosecution further argues that, by elevating this factor to a “pivotal ” level, the Trial Chamber failed to give appropriate consideration to Krstic’s individual responsibility.⁴¹⁶

254. The Appeals Chamber agrees that Radislav Krstic’s guilt should have been assessed on an individual basis. The Appeals Chamber further agrees that the comparative guilt of other alleged co-conspirators, not adjudicated in this case, is not a relevant consideration. The Appeals Chamber does not, however, share the Prosecution’s interpretation of the Trial Judgement.⁴¹⁷ The Trial Chamber was entitled to consider the conduct of Krstic in the proper context, which includes the conduct of any alleged co-perpetrators. A comprehensive understanding of the facts of a particular case not only permits a consideration of the culpability of other actors; indeed, it requires it in order to accurately comprehend the events in question and to impose the appropriate sentence.⁴¹⁸ While the wording of the Trial Judgement may be misleading, the Trial Chamber did not consider the allegedly higher culpability of others in an inappropriate way.

255. The Prosecution’s appeal on this ground is therefore dismissed.
     4. The Prosecution’s argument concerning premeditation as an aggravating factor

256. The Trial Chamber held that Radislav Krstic’s delayed participation precluded a finding of any premeditation on his part.⁴¹⁹ The Prosecution submits that the Trial Chamber erred discernibly in concluding that premeditation was not an aggravating factor in this case.⁴²⁰

257. On the facts considered by the Trial Chamber, it was within the Trial Chamber’s discretion to conclude that premeditation was not present and so could not be an aggravating factor. With respect to the finding that Krstic participated in genocide, no premeditation was established.⁴²¹ The same applies to Krstic for the opportunistic crimes that occurred at Potocari on 12 – 13 July 1995.

258. There was an element of premeditation in the decision forcibly to transfer the civilian population, but it was within the discretion of the Trial Chamber to discount this factor from having any bearing on the sentence imposed.

259. The Trial Chamber did not err in concluding that premeditation was not an aggravating factor in this case.
     5. The Defence’s argument regarding the sentencing practice of the Former Yugoslavia

260. The Defence submits that the Trial Chamber incorrectly considered the 1998 law of Bosnia-Herzegovina, as opposed to the law of the former Yugoslavia, in its decision on sentence.⁴²² The approach of the Tribunal regarding recourse to the sentencing practice of the former Yugoslavia, pursuant to Article 24(1) of the Statute and to Rule 101(B)(iii), is best expressed in the decision of the Trial Chamber in Prosecutor v. Kunarac et al:

     Although the Trial Chamber is not bound to apply the sentencing practice of the former Yugoslavia, what is required certainly goes beyond merely reciting the relevant criminal code provisions of the former Yugoslavia. Should they diverge, care should be taken to explain the sentence to be imposed with reference to the sentencing practice of the former Yugoslavia, especially where international law provides no guidance for a particular sentencing practice. The Trial Chamber notes that, because very important underlying differences often exist between national prosecutions and prosecutions in this jurisdiction, the nature, scope and the scale of the offences tried before the International Tribunal do not allow for an automatic application of the sentencing practices of the former Yugoslavia.⁴²³

261. The Trial Chamber was therefore required to consider the sentencing practice in the former Yugoslavia; this it did in paragraph 697 of the Trial Judgement. The footnotes to that paragraph demonstrate that the Trial Chamber considered the relevant legislation as required and analysed that legislation in relation to its findings. The Trial Chamber was entitled to consider, in addition to the SFRY law in force at the time of the commission of the crimes by Radislav Krstic, how that law evolved subsequently. The Trial Chamber ascertained that the sentencing practice of the former Yugoslavia evolved in a way consonant with the sentencing principles of this Tribunal. For example, the law of Bosnia-Herzegovina abolished the death penalty for crimes of which Krstic is convicted.⁴²⁴ Given the coherence of that abolishment with this Tribunal’s own sentencing powers as set out in Article 24, the Trial Chamber did not commit a discernible error in referring to the 1998 law of Bosnia-Herzegovina.

262. Finally, the Tribunal – while being obliged to consider the sentencing practice in the former Yugoslavia – is not bound by it.⁴²⁵ The Tribunal is not prevented from imposing a greater or lesser sentence than would have been imposed under the legal regime of the Former Yugoslavia.⁴²⁶

263. The Appeals Chamber is therefore unable to find a discernible error in the reasoning of the Trial Chamber in this regard. The Defence’s appeal on this ground is dismissed.
     6. The Defence’s argument as to inadequate weight accorded to mitigating circumstances

264. The Defence submits that the Trial Chamber failed to give adequate weight to the alleged mitigating circumstances.⁴²⁷

265. The Trial Chamber considered the circumstances identified by the defence, but concluded that they did not constitute mitigating circumstances.⁴²⁸ The Trial Chamber has discretion in deciding whether a particular circumstance should be regarded as a mitigating one. The Defence has failed to demonstrate that the Trial Chamber erred in the exercise of its discretion in this regard, and the ground of appeal is dismissed.
     C. The Appeals Chamber’s Considerations

266. The Appeals Chamber decides that the sentence must be adjusted due to the fact that it has found Radislav Krstic responsible as an aider and abettor to genocide and to murders as a violation of the laws or customs of war committed between 13 and 19 July 1995, instead of as a co-perpetrator, as found by the Trial Chamber. In accordance with its power to do so without remitting the matter to the Trial Chamber,⁴²⁹ the Appeals Chamber proceeds with the adjustment of Krstic’s sentence in light of its findings, and in accordance with the requirements of the Statute and the Rules.

267. As correctly stated by the Trial Chamber,⁴³⁰ the general sentencing principles applicable in this case include the following: (i) the gravity of the crime(s) alleged;⁴³¹ (ii) the general practice of prison sentences in the courts of the former Yugoslavia ;⁴³² (iii) the individual circumstances of the convicted person;⁴³³ and ( iv) any aggravating or mitigating circumstances.⁴³⁴

268. Regarding the gravity of the crimes alleged, as the Appeals Chamber recently acknowledged in the Vasiljevic case, aiding and abetting is a form of responsibility which generally warrants lower sentences than responsibility as a co-perpetrator. ⁴³⁵ This principle has also been recognized in the ICTR and in many national jurisdictions.⁴³⁶ While Radislav Krstic’s crime is undoubtedly grave, the finding that he lacked genocidal intent significantly diminishes his responsibility. The same analysis applies to the reduction of Krstic’s responsibility for the murders as a violation of laws or customs of war committed between 13 and 19 July 1995 in Srebrenica. As such, the revision of Krstic’s conviction to aiding and abetting these two crimes merits a considerable reduction of his sentence.

269. The Appeals Chamber has also concluded that the Trial Chamber erred in setting aside Radislav Krstic’s convictions for Counts Three (extermination as a crime against humanity) and Six (persecution as a crime against humanity) as impermissibly cumulative with the conviction for genocide. The Appeals Chamber concluded, however, that Krstic’s level of responsibility with respect to these two offences was that of an aider and abettor and not of a principal perpetrator. While these conclusions may alter the overall picture of Radislav Krstic’s criminal conduct, the Prosecution did not seek an increase in sentence on the basis of these convictions.⁴³⁷ The Appeals Chamber therefore does not take Krstic’s participation in these crimes into account in determining the sentence appropriate to the gravity of his conduct.

270. As regards the general sentencing practice of the courts of the former Yugoslavia, the Appeals Chamber has already explained that the Tribunal is not bound by such practice, and may, if the interests of justice so merit, impose a greater or lesser sentence than would have been imposed under the legal regime of the former Yugoslavia. In the above discussion of this factor, the Appeals Chamber has considered the sentencing practice of the courts of the former Yugoslavia applicable in this case, and has taken those practices into account. In particular, the sentence of a person who aided a principal perpetrator to commit a crime can be reduced to a sentence less than the one given to the principal perpetrator.⁴³⁸

271. The Trial Chamber has considered the individual circumstances of Radislav Krstic, including aggravating and mitigating circumstances. The Defence submits that the Trial Chamber erred in not according any weight in sentencing to Krstic’s poor health, his good personal character, his clear record to date,⁴³⁹ and his cooperation with the Tribunal and contribution to reconciliation in the former Yugoslavia.⁴⁴⁰ The Appeals Chamber adopts the Trial Chamber’s findings as to these factors, and concludes that they do not constitute mitigating circumstances in the context of this case. The Appeals Chamber also concludes that no aggravating factors are present in this case.

272. The Appeals Chamber believes, however, that four further factors must be accounted for in mitigation of Krstic’s sentence, namely: (i) the nature of his provision of the Drina Corps assets and resources; (ii) the fact that he had only recently assumed command of the Corps during combat operations; (iii) the fact that he was present in and around the Potocari for at most two hours; and (iv) his written order to treat Muslims humanely.

273. First, while Radislav Krstic made a substantial contribution to the realization of the genocidal plan and to the murder of the Bosnian Muslims of Srebrenica, his actual involvement in facilitating the use of Drina Corps personnel and assets under his command was a limited one. Second, while the Appeals Chamber has found that  Krstic assumed command of the Drina Corps on 13 July 1995, it accepts that the recent nature of his appointment, coupled with his preoccupation with conducting ongoing combat operations in the region around Zepa, meant that his personal impact on the events described was further limited. Third, Krstic was present in and around the Potocari compound during the afternoon of 12 July 1995 for at most two hours,⁴⁴¹ a period which, the Appeals Chamber finds, is sufficiently brief so as to justify a mitigation of sentence.⁴⁴² Finally, as discussed above,⁴⁴³ Radislav Krstic made efforts to ensure the safety of the Bosnian Muslim civilians transported out of Potocari, he issued an order that no harm befall civilians while guaranteeing their safe transportation out of the Srebrenica area, and he showed similar concerns for the Bosnian Muslim civilians during the Zepa campaign. Krstic’s personal integrity as a serious career military officer who would ordinarily not have been associated with such a plan at all, is also a factor in mitigation.

274. The Appeals Chamber notes that the Prosecution requested the imposition of a minimum sentence of 30 years’ imprisonment.⁴⁴⁴ As the Appeals Chamber explained in the Tadic Judgement in Sentencing Appeals, the decision whether to impose a minimum sentence is within the sentencing Chamber’s discretion.⁴⁴⁵ The imposition of a minimum sentence is ordered only rarely. In the absence of compelling reasons from the Prosecution as to why it should do so, the Appeals Chamber does not believe that a minimum sentence is appropriate in this case.

275. The Appeals Chamber finds that Radislav Krstic is responsible for very serious violations of international humanitarian law. The crime of genocide, in particular, is universally viewed as an especially grievous and reprehensible violation. In the light of the circumstances of this case, as well as the nature of the grave crimes Radislav Krstic has aided and abetted or committed, the Appeals Chamber, taking into account the principle of proportionality, considers that the sentence imposed by the Trial Chamber should be reduced to 35 years.

For the foregoing reasons, THE APPEALS CHAMBER

PURSUANT to Article 25 of the Statute and Rules 117 and 118 of the Rules of Procedure and Evidence;

NOTING the respective written submissions of the parties and the arguments they presented at the hearings of 26 and 27 November 2003;

SITTING in open session;

SETS ASIDE, Judge Shahabuddeen dissenting, Radislav Krstic’s conviction as a participant in a joint criminal enterprise to commit genocide (Count 1), and FINDS, Judge Shahabuddeen dissenting, Radislav Krstic guilty of aiding and abetting genocide;

RESOLVES that the Trial Chamber incorrectly disallowed Radislav Krstic’s convictions as a participant in extermination and persecution (Counts 3 and 6) committed between 13 and 19 July 1995, but that his level of responsibility was that of an aider and abettor in extermination and persecution as crimes against humanity;

SETS ASIDE, Judge Shahabuddeen dissenting, Radislav Krstic’s conviction as a participant in murder under Article 3 (Count 5) committed between 13 and 19 July 1995, and FINDS, Judge Shahabuddeen dissenting, Radislav Krstic guilty of aiding and abetting murder as a violation of the laws or customs of war;

AFFIRMS Radislav Krstic’s convictions as a participant in murder as a violation of the laws or customs of war (Count 5) and in persecution (Count 6) committed between 10 and 13 July 1995 in Potocari;

DISMISSES the Defence and the Prosecution appeals concerning Radislav Krstic’s convictions in all other respects;

DISMISSES the Defence and the Prosecution appeals against Radislav Krstic’s sentence and IMPOSES a new sentence, taking into account Radislav Krstic’s responsibility as established on appeal;

SENTENCES Radislav Krstic to 35 years’ imprisonment to run as of this day, subject to credit being given under Rule 101(C) of the Rules of Procedure and Evidence for the period Radislav Krstic has already spent in detention, that is from 3 December 1998 to the present day;

ORDERS, in accordance with Rules 103(C) and 107 of the Rules of Procedure and Evidence, that Radislav Krstic is to remain in the custody of the Tribunal pending the finalisation of arrangements for his transfer to the State where his sentence will be served.

Done in English and French, the English text being authoritative.

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Judge Theodor Meron Presiding

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Judge Fausto Pocar

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Judge Mohamed Shahabuddeen

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Judge Mehmet Güney

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Judge Wolfgang Schomburg

Judge Mohamed Shahabuddeen appends a partial dissenting opinion.

Dated this 19th day of April 2004
At The Hague,
The Netherlands.

[SEAL OF THE TRIBUNAL]