Case No. IT-98-30/1-A

Before:
Judge Mohamed Shahabuddeen, Presiding
Judge Fausto Pocar
Judge Florence Ndepele Mwachande Mumba
Judge Mehmet Güney
Judge Inés Mónica Weinberg de Roca

Registrar:
Mr. Hans Holthuis

The Office of the Prosecutor:

Mr. Anthony Carmona
Ms. Helen Brady
Ms. Norul Rashid
Mr. David Re
Ms. Kelly Howick

Counsel for the Accused:

Mr. Krstan Simic for Miroslav Kvocka
Mr. Toma Fila for Mladjo Radic
Mr. Slobodan Stojanovic for Zoran Zigic
Mr. Goran Rodic for Dragoljub Prcac

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 four appeals¹ from the written Judgement rendered by Trial Chamber I on 2 November 2001 in the case of Prosecutor v. Miroslav Kvocka, Milojica Kos, Mladjo Radic, Zoran Zigic and Dragoljub Prcac, Case No IT-98-30/1-T (“Appeals” and “Trial Judgement”, respectively). Milojica Kos submitted an appeal, which was subsequently withdrawn, leaving the appeals by the other four convicted Appellants (“Appellants”).²

2. The events giving rise to these Appeals took place within three camps established at the Omarska and Trnopolje villages and at the Keraterm factory, in the area of Prijedor, in northwest Bosnia and Herzegovina. These camps were established shortly after the Serb takeover of the city of Prijedor on 30 April 1992; their overriding purpose was to hold individuals who were suspected of sympathizing with the opposition to the takeover.³ The Trial Chamber found that the Omarska camp functioned as a joint criminal enterprise: the atrocities committed therein consisted of a broad mixture of serious crimes committed intentionally in order to persecute and subjugate non-Serbs detained in the camp.⁴

3. Miroslav Kvocka (“Kvocka”) was a professional police officer attached to the Omarska police station department at the time the Omarska camp was established.⁵ The Trial Chamber found that Kvocka participated in the operation of the camp as the functional equivalent of the deputy commander of the guard service and that he had some degree of authority over the guards.⁶ Because of the authority and influence which he exerted over the guard service and the limited attempts he made to prevent crime and alleviate the suffering of detainees, as well as the significant role he played in maintaining the functioning of the camp despite his knowledge that it was a criminal endeavour, Kvocka was found to be a co-perpetrator of the joint criminal enterprise of the Omarska camp.⁷ Under Article 7(1) of the Statute, he was found guilty of co-perpetrating persecutions (count 1) under Article 5 of the Statute as well as murder (count 5) and torture (count 9) under Article 3 of the Statute.⁸ The remaining charges against him were dismissed.⁹ The Trial Chamber held that he did not incur superior responsibility for failing to prevent or punish crimes committed by his subordinates, pursuant to Article 7 (3) of the Statute.¹⁰ The Trial Chamber sentenced him to a single sentence of seven years’ imprisonment for the crimes for which he was convicted.¹¹ He was granted provisional release on 17 December 2003 pending delivery of this Judgement. ¹²

4. Milojica Kos (“Kos”) was a waiter by profession who was mobilized to serve as a reserve officer. The Trial Chamber found that he was a guard shift leader in the Omarska camp¹³ from approximately 31 May to 6 August 1992.¹⁴ Because of the substantial contribution he made to the maintenance and functioning of the camp, the Trial Chamber found that he knowingly and intentionally contributed to the furtherance of the joint criminal enterprise at the Omarska camp.¹⁵ He was found individually responsible under Article 7(1) of the Statute and guilty as a co-perpetrator of persecutions (count 1) under Article 5 of the Statute as well as murder (count 5) and torture (count 9) under Article 3 of the Statute.¹⁶ The Trial Chamber was not satisfied that sufficient proof was provided to demonstrate that he exercised the necessary degree of control over the guards who committed specific crimes within the Omarska camp.¹⁷ As a result, he did not incur superior responsibility under Article 7(3) of the Statute. The remaining charges against him were dismissed.¹⁸ The Trial Chamber sentenced him to a single sentence of six years’ imprisonment for these crimes.¹⁹ Following the withdrawal of his appeal, he filed a motion for early release, which was granted on 31 July 2002.²⁰

5. Dragoljub Prcac (“Prcac”) was a retired policeman and a crime technician who was mobilized to serve in the Omarska police station on 29 April 1992.²¹ The Trial Chamber found that he was an administrative aide to the commander of the Omarska camp for over three weeks²² and that, as such, he was able to move unhindered through the camp.²³ As a result of his position, Prcac was found to have some influence over the guards.²⁴ The Trial Chamber found that he remained impassive when crimes were committed in his presence and that, although not responsible for the behaviour of guards or interrogators, he was still responsible for managing the movement of detainees within the camp.²⁵ The Trial Chamber concluded that his participation in the camp, with full knowledge of what went on, was significant and that his acts and omissions substantially contributed to assisting and facilitating the joint criminal enterprise of the camp.²⁶ Pursuant to Article 7(1) of the Statute, the Trial Chamber found him guilty of co -perpetrating persecution (count 1) under Article 5 of the Statute as well as murder (count 5) and torture (count 9) under Article 3 of the Statute.²⁷ The Trial Chamber found that he did not incur superior responsibility pursuant to Article 7(3) of the Statute.²⁸ The remaining counts against him were dismissed.²⁹ The Trial Chamber sentenced Dragoljub Prcac to a single sentence of five years’ imprisonment for the crimes for which he was convicted.³⁰

6. Mladjo Radic (“Radic”) was a professional policeman attached to the Omarska police station. The Trial Chamber found that he took up his duties as guard shift leader in the Omarska camp on approximately 28 May 1992 and remained there until the end of August 1992.³¹ As a guard shift leader, Radic was found to have been in a position of substantial authority over guards on his shift. He used his power selectively to prevent crimes, and ignored the vast majority of crimes committed on his shift.³² The Trial Chamber noted that guards on his shift were particularly brutal and that Radic personally committed sexual violence against female detainees.³³ The Trial Chamber found that Radic played a substantial role in the functioning of Omarska camp and that he was a co-perpetrator to the joint criminal enterprise . He was found guilty under Article 7(1) of the Statute as a co-perpetrator of the following crimes committed as part of a joint criminal enterprise: persecutions (count 1) under Article 5 of the Statute and murder (count 5) and torture (counts 9 and 16) under Article 3 of the Statute.³⁴ The remaining charges against him were dismissed.³⁵ The Trial Chamber declined to find that he incurred superior responsibility for his involvement in Omarska camp pursuant to Article 7(3) of the Statute.³⁶ Mladjo Radic received a single sentence of twenty years’ imprisonment for his involvement at Omarska.³⁷

7. Zoran Zigic (“Zigic”) was a civilian taxi-driver who was mobilized to serve as a reserve police officer. He worked for a short period of time in the Keraterm camp and delivered supplies,³⁸ and he was also allowed to enter the Omarska and Trnopolje camps.³⁹ With regard to the Omarska camp, the Trial Chamber found that Zigic regularly entered the camp specifically to abuse detainees. Zigic’s significant participation in the crimes at the Omarska camp, coupled with his awareness of their persecutory nature and the eagerness and aggressiveness with which he participated therein, led the Trial Chamber to conclude that he was a co-perpetrator of the joint criminal enterprise of Omarska camp.⁴⁰ Zigic was the only accused in the present case charged with crimes committed at the Keraterm camp. The Trial Chamber found that he committed persecutions, torture and murder at the Keraterm camp and that these crimes were part of a widespread or systematic attack against non-Serbs detained there, constituting crimes against humanity.⁴¹ The Trial Chamber also found that Zigic entered Trnopolje camp and abused detainees.⁴²

8. Pursuant to Article 7(1) of the Statute, Zigic was found guilty of persecutions (count 1) for the crimes committed in the Omarska camp generally and in particular against Becir Medunjanin, Asef Kapetanovic, Witnesses AK, AJ, T, Abdulah Brkic and Emir Beganovic, as well as for crimes committed by him in the Keraterm camp against Fajzo Mujkanovic, Witness AE, RedZep Grabic, Jasmin Ramadonovic, Witness V, Edin Ganic, Emsud Bahonjic, Drago Tokmadzic and Sead Jusufagic.⁴³

9. Zigic was found guilty of murder (count 7) with respect to crimes committed in the Omarska camp generally and against Becir Medunjanin in particular. With regard to the Keraterm camp, he was found guilty of murder (count 7) with respect to Drago Tokmadzic, Emsud Bahonjic and Sead Jusufagic.⁴⁴ He was found guilty of torture (count 12) with respect to crimes committed in the Omarska camp generally and against Abdulah Brkic, Witnesses T, AK, AJ, Asef Kapetanovic in particular, and with respect to crimes committed in the Keraterm camp against Fajzo Mujkanovic, Witness AE, RedZep Grabic and Jasmin Ramadonovic.⁴⁵ He was found guilty of cruel treatment (count 13) with respect to crimes committed against Emir Beganovic in the Omarska camp and Hasan Karabasic in the Trnopolje camp.⁴⁶ The remaining charges against him were dismissed.⁴⁷ The Trial Chamber sentenced Zoran Zigic to a single sentence of twenty-five years’ imprisonment.⁴⁸

10. All Appellants have appealed both their convictions and the sentences received. Notices of appeal were filed in November 2001. This long appeal has been characterized in part by the filing between August 2002 and June 2003 of a number of motions to admit additional evidence on appeal pursuant to Rule 115 of the Rules by three out of the four Appellants.⁴⁹ The “Decision on Appellants’ Motions to Admit Additional Evidence Pursuant to Rule 115” was rendered by the Appeals Chamber on 16 February 2004. The Appeals Chamber found that three items of additional evidence as well as three items of rebuttal material⁵⁰ were admissible pursuant to Rule 115 of the Rules. Four witnesses were heard in the evidentiary portion of the hearing on appeal on 23 March 2004, as well as between 19 and 21 July 2004.

11. All four Appellants share common grounds of appeal concerning, inter alia , the doctrine of joint criminal enterprise and the manner in which it was pleaded, in addition to other grounds of appeal specific to them. The Appeals Chamber heard the Appeals from 23 to 26 March 2004. Additional hearings on appeal took place between 19 and 21 July 2004.

12. Having considered the written and oral submissions of the Appellants and the Prosecution, the Appeals Chamber hereby renders its Judgement.
    II. GENERAL GROUNDS OF APPEAL
    A. Standard of Review

13. The Appeals Chamber finds it appropriate to recall the standard of review by which it determines whether a ground of appeal is to be granted or dismissed, and the related formal requirements.

14. On appeal, the Parties must limit their arguments to legal errors, which invalidate the decision of the Trial Chamber and to factual errors, which occasion a miscarriage of justice within the scope of Article 25 of the Statute. These criteria have been frequently referred to and are well established by the Appeals Chamber of both the ICTY⁵¹ and the ICTR.⁵²

15. The Appeals Chamber recalls at the outset that it maintains a discretion under Article 25 of the Statute to determine which of the parties’ submissions warrant a reasoned written response. The Appellant has the obligation to set out his grounds of appeal clearly, and to provide the Appeals Chamber with specific references to the alleged errors of the Trial Judgement and to the parts of the record he is using to support his case.⁵³ The Appeals Chamber cannot be expected to distil the Appellant’s legal arguments from vaguely pleaded suggestions of legal error mentioned in passing that are connected with factual arguments. If an argument is clearly without foundation, the Appeals Chamber is not required to provide a detailed written explanation of its position with regard to that argument. Therefore, the Appeals Chamber may decide not to consider arguments which are not directly pleaded as grounds of appeal or to reject, without detailed reasoning, arguments that are obviously ill-founded.⁵⁴
    1. Legal Errors

16. Any party alleging an error of law must, at least, identify the alleged error, present arguments in support of its claim and explain how the error invalidates the decision. An allegation of an error of law which has no chance of resulting in an impugned decision being quashed or revised may therefore be rejected on that ground.⁵⁵ However, if the arguments do not support the contention, that party does not automatically lose its point since the Appeals Chamber may step in and for other reasons find in favour of the contention that there is an error of law.⁵⁶

17. Where the Appeals Chamber finds that there is an error of law in the Trial Judgement arising from the application of the wrong legal standard by the Trial Chamber, it is open to the Appeals Chamber to articulate the correct legal standard and review the relevant factual findings of the Trial Chamber accordingly. In doing so, the Appeals Chamber not only corrects a legal error, but applies the correct legal standard to the evidence contained in the trial record in the absence of additional evidence, and it must determine whether it is itself convinced beyond reasonable doubt as to the factual finding challenged by the Defence before that finding is confirmed on appeal.⁵⁷
    2. Factual Errors

18. The standard of review in relation to alleged errors of fact applied by the Appeals Chamber is one of reasonableness. When considering alleged errors of fact as raised by the Defence, the Appeals Chamber will determine whether no reasonable trier of fact could have reached the verdict of guilt beyond reasonable doubt.⁵⁸ The Appeals Chamber will only substitute its own finding for that of the Trial Chamber when no reasonable trier of fact could have reached the original decision. It is not any error of fact that will cause the Appeals Chamber to overturn a decision by a Trial Chamber, but only one which has caused a miscarriage of justice, which has been defined as a “grossly unfair outcome in judicial proceedings, as when a defendant is convicted despite a lack of evidence on an essential element of the crime.”⁵⁹

19. The Appeals Chamber bears in mind that in determining whether or not a Trial Chamber’s finding was reasonable, it “will not lightly disturb findings of fact by a Trial Chamber.”⁶⁰ The Appeals Chamber recalls, as a general principle, the approach adopted by the Appeals Chamber in Kupreskic et al., wherein it was stated that:

    Pursuant to the jurisprudence of the Tribunal, the task of hearing, assessing and weighing the evidence presented at trial is left primarily to the Trial Chamber. Thus, the Appeals Chamber must give a margin of deference to a finding of fact reached by a Trial Chamber. Only where the evidence relied on by the Trial Chamber could not have been accepted by any reasonable tribunal of fact or where the evaluation of the evidence is “wholly erroneous” may the Appeals Chamber substitute its own finding for that of the Trial Chamber.⁶¹

20. The Appeals Chamber considers that there are no reasons to depart from the standard set out above. That standard will be applied where appropriate in the present Judgement.
    B. Alleged insufficiency of reasoning in the Trial Chamber’s Judgement

21. Several of the Appellants contend that the Trial Chamber failed to give sufficient reasons for their conviction. According to the Appellant Zigic, the Trial Judgement was not well reasoned and its quality was far below the standard of the Tribunal, since the reasoning in the opinion was too short.⁶² He submits that the Trial Chamber failed to assess all of the evidence presented and alleges that the Trial Chamber ignored more than 75 percent of the evidence.⁶³ In his view, the Trial Chamber, while ignoring the major part of the evidence, selected only evidence in favour of conviction.⁶⁴ Zigic claims that the Trial Chamber considered only undisputed issues in its Judgement, whereas the questions and objections raised by him were not addressed.⁶⁵ Furthermore, Zigic argues that, in some cases, the Trial Chamber did not discuss all the elements of crimes.⁶⁶ The Appellant Radic refers to the case of Georgiadis v. Greece in the European Court of Human Rights⁶⁷ to demonstrate that a court of law must “give much more specific reason” when its finding is of “decisive importance for appellant’s rights” and when the findings include “assessment of factual issues”.⁶⁸ Similar arguments are raised by Kvocka.⁶⁹

22. The Prosecution responds that the duty to provide a reasoned opinion in writing does not require the Trial Chamber to articulate in its judgement every step of its reasoning in reaching particular findings, or to refer to the testimony of every relevant witness, or to every piece of evidence on the trial record.⁷⁰ It adds that the Trial Chamber is not obliged to give a detailed answer to every argument.⁷¹ The Prosecution submits that, in the absence of some indication that the Trial Chamber did not weigh all the evidence that was presented to it, the Trial Chamber’s reasoned opinion will not be defective as a result of a failure to refer to a witness, even one whose evidence contradicts the findings of the Trial Chamber.⁷² In the Prosecution’s view, the Trial Chamber is only required to make findings of those facts which are essential to a determination of guilt on a particular point, and is not required to make findings in relation to other facts which are not essential, even if they were expressly alleged in the indictment.⁷³

23. The Appeals Chamber recalls that every accused has the right to a reasoned opinion under Article 23 of the Statute and Rule 98ter(C) of the Rules.⁷⁴ However, this requirement relates to the Trial Chamber’s Judgement; the Trial Chamber is not under the obligation to justify its findings in relation to every submission made during the trial. The Appeals Chamber recalls that it is in the discretion of the Trial Chamber as to which legal arguments to address. With regard to the factual findings, the Trial Chamber is required only to make findings of those facts which are essential to the determination of guilt on a particular count. It is not necessary to refer to the testimony of every witness or every piece of evidence on the trial record.⁷⁵ It is to be presumed that the Trial Chamber evaluated all the evidence presented to it, as long as there is no indication that the Trial Chamber completely disregarded any particular piece of evidence. There may be an indication of disregard when evidence which is clearly relevant to the findings is not addressed by the Trial Chamber’s reasoning, but not every inconsistency which the Trial Chamber failed to discuss renders its opinion defective. Considering the fact that minor inconsistencies commonly occur in witness testimony without rendering it unreliable, it is within the discretion of the Trial Chamber to evaluate it and to consider whether the evidence as a whole is credible, without explaining its decision in every detail.⁷⁶ If the Trial Chamber did not refer to the evidence given by a witness, even if it is in contradiction to the Trial Chamber’s finding, it is to be presumed that the Trial Chamber assessed and weighed the evidence, but found that the evidence did not prevent it from arriving at its actual findings. It is therefore not possible to draw any inferences about the quality of a judgement from the length of particular parts of a judgement in relation to other judgements or parts of the same judgement.

24. The Appeals Chamber notes that, in certain cases, the requirements to be met by the Trial Chamber are higher. As an example of a complex issue, the Appeals Chamber considered the appraisal of witness testimony with regard to the identity of the accused:

    While a Trial Chamber is not obliged to refer to every piece of evidence on the trial record in its judgement, where a finding of guilt is made on the basis of identification evidence given by a witness under difficult circumstances, the Trial Chamber must rigorously implement its duty to provide a “reasoned opinion”. In particular, a reasoned opinion must carefully articulate the factors relied upon in support of the identification of the accused and adequately address any significant factors impacting negatively on the reliability of the identification evidence. ⁷⁷

    But even in those cases, the Trial Chamber is only expected to identify the relevant factors, and to address the significant negative factors. If the Defence adduced the evidence of several other witnesses, who were unable to make any meaningful contribution to the facts of the case, even if the conviction of the accused rested on the testimony of only one witness, the Trial Chamber is not required to state that it found the evidence of each Defence witness irrelevant. On the contrary, it is to be presumed that the Trial Chamber took notice of this evidence and duly disregarded it because of its irrelevance. In general, as the Furundzija Appeals Chamber stated:

    The case-law that has developed under the European Convention on Human Rights establishes that a reasoned opinion is a component of the fair hearing requirement, but that “the extent to which this duty... applies may vary according to the nature of the decision” and “can only be determined in the light of the circumstances of the case ”.⁷⁸

25. The Appeals Chamber therefore emphasizes that it is necessary for any appellant claiming an error of law because of the lack of a reasoned opinion to identify the specific issues, factual findings or arguments, which he submits the Trial Chamber omitted to address and to explain why this omission invalidated the decision.⁷⁹ General observations on the length of the Judgement, or of particular parts of the Judgement, or of the discussion of certain parts of the evidence, do not qualify, except in particularly complex cases, as the basis of a valid ground of appeal.⁸⁰
    C. Issues related to the Indictment
    1. Notice

26. Each of the Appellants contends that the Trial Chamber erred in law in convicting him of crimes not properly pleaded in the Indictment for which he therefore lacked notice. This section will outline the law governing challenges to the failure of an indictment to provide notice and then will consider the merits of the argument, raised by Appellants Radic and Zigic, that the Indictment failed to plead joint criminal enterprise as a mode of responsibility. Finally, the Appeals Chamber will discuss the Trial Chamber’s approach to the Schedules attached to the Indictment. Other challenges to the adequacy of the Indictment will be discussed in the sections dealing with the individual grounds of appeal.
    2. The law applicable to indictments

27. In accordance with Article 21(4)(a) of the Statute, an accused has the right “to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him”. It is well established in the case law of the International Tribunal that Articles 18(4) and 21(2), (4)(a), and (4)( b) of the Statute require the Prosecution to plead in the indictment all material facts underpinning the charges in the indictment, but not the evidence by which the material facts are to be proven.⁸¹

28. If the Defence is not properly notified of the material facts of the accused’s alleged criminal activity until the Prosecution files its pre-trial brief or until trial itself, it will be difficult for the Defence to conduct a meaningful investigation prior to the commencement of the trial.⁸² Thus, an indictment is defective if it fails to plead required material facts.⁸³ An indictment which merely lists the charges against the accused without pleading the material facts does not constitute adequate notice because it lacks “enough detail to inform a defendant clearly of the charges against him so that he may prepare his defence”.⁸⁴ Whether or not a fact is considered material depends on the nature of the Prosecution’s case. The Prosecution’s characterization of the alleged criminal conduct and the proximity of the accused to the underlying crime are decisive factors in determining the degree of specificity with which the Prosecution must plead the material facts of its case in the indictment in order to provide the accused with adequate notice. For example, if the Prosecution alleges that an accused personally committed the criminal acts in question, the indictment should include details which explain this allegation, such as the identity of the victim, the time and place of the events, and the means by which the offence was committed.⁸⁵ If the Prosecution relies on a theory of joint criminal enterprise, then the Prosecutor must plead the purpose of the enterprise, the identity of the participants, and the nature of the accused’s participation in the enterprise.⁸⁶ Therefore, in order for an accused charged with joint criminal enterprise to fully understand which acts he is allegedly responsible for, the indictment should clearly indicate which form of joint criminal enterprise is being alleged.⁸⁷

29. If an indictment merely quotes the provisions of Article 7(1) without specifying which mode or modes of responsibility are being pleaded, then the charges against the accused may be ambiguous.⁸⁸ When the Prosecution is intending to rely on all modes of responsibility in Article 7 (1), then the material facts relevant to each of those modes must be pleaded in the indictment. Otherwise, the indictment will be defective either because it pleads modes of responsibility which do not form part of the Prosecution’s case, or because the Prosecution has failed to plead material facts for the modes of responsibility it is alleging.

30. Where the scale of the crimes or the fallibility of witness recollection prevents the Prosecution from providing all the necessary material facts, less information may be acceptable. However, even where it is impracticable or impossible to provide full details of a material fact, the Prosecution must indicate its best understanding of the case against the accused and the trial should only proceed where the right of the accused to know the case against him and to prepare his defence has been assured. The Prosecution is expected to know its case before proceeding to trial and may not rely on the weaknesses of its own investigation in order to mould the case against the accused as the trial progresses.⁸⁹

31. An indictment may also be defective when the material facts are pleaded without sufficient specificity, such as, unless there are special circumstances, when the times refer to broad date ranges, the places are only generally indicated, and the victims are only generally identified. Other defects in an indictment may arise at a later stage of the proceedings if the evidence at trial turns out to be different from that expected. In such circumstances, the Trial Chamber must consider whether a fair trial requires an amendment of the indictment, an adjournment, or the exclusion of evidence outside the scope of the indictment.⁹⁰

32. When considering a motion to amend an indictment, the Trial Chamber must consider whether the Prosecution has provided the accused with clear and timely notice of the allegations such that the Defence has had a fair opportunity to conduct investigations and to prepare its response notwithstanding the defective indictment.⁹¹

33. In reaching its judgement, a Trial Chamber can only convict the accused of crimes which are charged in the indictment. If the indictment is found to be defective because of vagueness or ambiguity, then the Trial Chamber must consider whether the accused has nevertheless been accorded a fair trial. In some instances, where the accused has received timely, clear, and consistent information from the Prosecution which resolves the ambiguity or clears up the vagueness, a conviction may be entered. Where the failure to give sufficient notice of the legal and factual reasons for the charges against him has violated the right to a fair trial, no conviction may result.

34. When challenges to an indictment are raised on appeal, the indictment can no longer be amended and so the Appeals Chamber must determine whether the error of trying the accused on a defective indictment “invalidat(ed( the decision.”⁹² In making this determination, the Appeals Chamber does not exclude the possibility that, in some instances, the prejudicial effect of a defective indictment can be “remedied” if the Prosecution has provided the accused with clear, timely and consistent information detailing the factual basis underpinning the charges against him or her, which compensates for the failure of the indictment to give proper notice of the charges.⁹³

35. When an accused raises the issue of lack of notice before the Trial Chamber, the burden rests on the Prosecution to demonstrate that the accused’s ability to prepare a defence was not materially impaired.⁹⁴ When an appellant raises a defect in the indictment for the first time on appeal, then the appellant bears the burden of showing that his ability to prepare his defence was materially impaired.⁹⁵
    3. Failure to plead joint criminal enterprise in the Indictment

36. Radic argues that the failure to plead joint criminal enterprise responsibility in the Indictment constitutes a violation of his right to notice of the charge against him pursuant to Article 21(4) of the Statute. Radic argues that by convicting him for an unpleaded mode of responsibility – joint criminal enterprise – the Trial Chamber effectively amended the Indictment at trial in violation of the procedures set out in Rule 50 of the Rules.⁹⁶ He maintains that the form of criminal responsibility is an essential element of the Prosecution’s case and argues that he should not have to refer to ICTY case law such as the Tadic Appeal Judgement in order to understand the charges presented against him in the Indictment. Moreover, even if the reference to Article 7(1) were sufficient to put him on notice that he might be prosecuted based on joint criminal enterprise responsibility, this did not provide him with sufficient notice of the type of joint criminal enterprise responsibility which would form the basis for the Prosecution’s case. Finally, he asserts that the Prosecution’s responsibility to inform the accused of the charges against him must be discharged in the Indictment and cannot be satisfied through later filings or statements.⁹⁷

37. Zigic also argues that the Prosecution failed to plead criminal responsibility based on a joint criminal enterprise in the Indictment, and that he was not properly informed of the allegations against him.⁹⁸ In particular, Zigic notes that the Prosecution did not inform him of the specific crimes to which the joint criminal enterprise was related.⁹⁹

38. Kvocka raises a similar argument in his Reply Brief. He argues that the Prosecution did not charge him in the Indictment with acting in accordance with a common plan to persecute detainees in Omarska camp.¹⁰⁰ In addition, he points out that the Prosecution failed to give the identities of the other members of this common design.¹⁰¹

39. Appellant Prcac made a related comment in his oral submissions at the appeals hearing, arguing that the Trial Chamber used joint criminal enterprise to save “ the indictment from being completely dismissed”.¹⁰²

40. The Prosecution responds that the reference in the Indictment to individual criminal responsibility under Article 7(1) was sufficient to put the Appellants on notice that they were being prosecuted for participating in a joint criminal enterprise since the jurisprudence of the International Tribunal has interpreted joint criminal enterprise as a form of individual criminal responsibility under Article 7(1).¹⁰³ Moreover, the intention to prosecute for joint criminal enterprise responsibility was made explicit in both the Prosecution’s updated pre-trial brief and its opening statement.¹⁰⁴ The Prosecution emphasizes that its opening statement made it clear to all of the Appellants that they would be prosecuted on a theory of common purpose based on the three categories outlined in Tadic, and that none of the Appellants objected at that stage that the theory of common purpose or joint criminal enterprise had not been properly pleaded in the Indictment.¹⁰⁵ The Prosecution further notes that none of the Appellants raised this issue at the Rule 98bis hearing, and that none of them stated at trial that their ability to conduct cross-examination had been impaired as a result of the failure of the Indictment to allege the existence of a joint criminal enterprise.¹⁰⁶ The Prosecution argues that even if the notice was deficient, the Appellants have failed to identify any prejudice flowing from it.¹⁰⁷

41. The Appeals Chamber notes that joint criminal enterprise was not pleaded in the initial indictments against the Appellants or any of the subsequent amendments to the Indictment.¹⁰⁸ The final version of the Amended Indictment, dated 26 October 2000, specifically indicates that the Accused were individually responsible for the crimes charged in the Indictment pursuant to Article 7(1) of the Statute, which “is intended to incorporate any and all forms of individual criminal responsibility as set forth in Article 7(1).”¹⁰⁹ The Appeals Chamber reaffirms that the Prosecution should only plead those modes of responsibility which it intends to rely on. Although the Indictment relies on all modes of individual criminal responsibility found in Article 7(1) of the Statute, the Prosecution has failed to plead the material facts necessary to support each of these modes. For example, despite pleading ordering as a mode of responsibility, the Indictment does not include any material facts which allege that any Accused ordered the commission of any particular crime on any occasion. Thus, the Appeals Chamber finds that in pleading modes of responsibility for which no corresponding material facts are pleaded, the Indictment is vague and is therefore defective.

42. The Appeals Chamber also considers that the Indictment is defective because it fails to make any specific mention of joint criminal enterprise, although the Prosecution’s case relied on this mode of responsibility. As explained above, joint criminal enterprise responsibility must be specifically pleaded. Although joint criminal enterprise is a means of “committing”, it is insufficient for an indictment to merely make broad reference to Article 7(1) of the Statute. Such reference does not provide sufficient notice to the Defence or to the Trial Chamber that the Prosecution is intending to rely on joint criminal enterprise responsibility. Moreover, in the Indictment the Prosecution has failed to plead the category of joint criminal enterprise or the material facts of the joint criminal enterprise, such as the purpose of the enterprise, the identity of the participants, and the nature of the accused’s participation in the enterprise.¹¹⁰

43. The Appeals Chamber notes, however, that a careful review of the trial record reveals that the Prosecution gave timely, clear, and consistent information to the Appellants, which detailed the factual basis of the charges against them and thereby compensated for the Indictment’s failure to give proper notice of the Prosecution’s intent to rely on joint criminal enterprise responsibility.

44. The Appeals Chamber also notes that the Prosecution’s Pre-Trial Brief of 9 April 1999 reproduces Article 7(1) of the Statute and mentions the common purpose doctrine in broad terms but does not specify that the Prosecution intends to rely on this mode of responsibility.¹¹¹

45. In the Prosecution’s Submission of Updated Version of Pre-Trial Brief, filed 14 February 2000, the Prosecution addresses common purpose responsibility in some detail. The brief specifically pleads the requisite elements of joint criminal enterprise, setting out the alleged common purpose, the plurality of participants, and the nature of the participation of each Accused in the common enterprise.¹¹² According to the Prosecution, the common purpose of the Accused was to “rid the Prijedor area of Muslims and Croats as part of an effort to create a unified Serbian State.”¹¹³ This brief also delineates the three categories of collective criminality, citing corresponding case law, and indicates into which category each of the Accused falls.¹¹⁴ The Prosecution only names Kvocka as being responsible under the first category of joint criminal enterprise, but alleges that Kvocka, Radic and Kos were part of a systemic joint criminal enterprise.¹¹⁵ According to the Prosecution, Kvocka, Radic, and Kos were also responsible under the extended form of joint criminal enterprise for the foreseeable consequences of the acts of others who were, such as Zigic, permitted to enter the camp.¹¹⁶ It is unclear from this brief whether Zigic is alleged to have joined the common purpose of the joint criminal enterprise. The Prosecution states clearly that the other three accused are alleged to be responsible for the acts of Zigic and “others like him” because they permitted them to enter the camp.¹¹⁷ However, the Prosecutor also states that “[e]ach of the accused actively participated in this common design, and in doing so, each bears responsibility for crimes against humanity and violations of the laws of war”, suggesting, without clearly stating, that Zigic also shared the common purpose.¹¹⁸

46. The Appeals Chamber further considers that the Prosecution’s concentration on joint criminal enterprise is emphasized again in the opening statement of 28 February 2000. Prosecution Counsel referred to paragraph 191 of the Tadic Appeal Judgement and argued that the common design that united the accused was the creation of a Serbian state within the former Yugoslavia, and that they worked to achieve this goal by participating in the persecution of Muslims and Croats.¹¹⁹ Prosecution Counsel submitted that although Kvocka did not physically commit any crimes, his presence and his failure to restrain the guards encouraged the abuse of detainees. Therefore, in the Prosecution Counsel’s view, Kvocka voluntarily participated in the “common criminal design” and was responsible under the “first category of liability under this theory of common purpose”.¹²⁰ With regard to the acts committed by outsiders, who, like Zigic, entered the Omarska camp to maltreat detainees, Counsel alleged that the accused did nothing to prevent such incursions. Thus, Counsel argued, the accused became responsible for the foreseeable consequences of these incursions under “the third category of common purpose liability .”¹²¹

47. After the Prosecution’s opening statement, the Trial Chamber heard the testimonies of Kvocka¹²² and Radic.¹²³ Before any prosecution witnesses were called, Prcac was arrested and the trial was adjourned on 6 March 2000. When the hearing reopened, on 2 May 2000, the Prosecution made a further opening statement addressing Prcac’s participation in a joint criminal enterprise with the other co-accused. Prosecution counsel argued that Prcac’s conduct, like that of the other accused, was a manifestation of collective criminality: ¹²⁴

    While he may not have physically committed or perhaps not been physically present when each of the specific criminal acts alleged in the indictment or the attached schedules were committed, those criminal acts could not have been committed as they were without his assistance, approval, and acquiescence.¹²⁵

    He pointed out that it was the Prosecution’s position that Prcac was responsible for the crimes charged under “any one or all” of the theories of joint criminal enterprise.¹²⁶

48. On 13 October 2000, during the Prosecution’s case, the Trial Chamber ruled on the Prosecution’s request to file an amended indictment. During the oral argument on this issue, Prosecution counsel reiterated its focus on joint criminal enterprise, arguing that “[a]t the same time, we wanted to reinforce the fact that the Prosecution's theory is that each of these accused individually are responsible for the totality of the acts by virtue of their participation in this common enterprise.”¹²⁷ The Trial Chamber authorized the Prosecution to file an amended indictment, considering in its decision “that the Prosecution repeatedly made arguments that the accused ‘joined’ a ‘criminal enterprise’ and could be responsible for crimes occurring after June 1992 pursuant to a theory of ‘common purpose’”.¹²⁸

49. In the Decision on Defence Motions for Acquittal, issued on 15 December 2000 at the close of the Prosecution’s case, the Trial Chamber considered the Defence arguments and granted a judgement of partial acquittal to accused Kos, Kvocka, Radic, and Prcac for alleged offences in Keraterm and Trnopolje.¹²⁹ The Trial Chamber found that no reasonable trier of fact could have convicted the accused of those crimes, dismissing the possibility that “even a common purpose theory of responsibility would extend so far”.¹³⁰ In considering the Defence’s argument that the Prosecution had failed to adduce sufficient evidence, the Trial Chamber expressly considered whether a conviction could be entered for a joint criminal enterprise mode of responsibility.¹³¹ The Trial Chamber rejected the motion for acquittal in relation to the events on Petrovdan (a Serbian holiday), explaining that:

    Under the common purpose theory of liability put forward by the Prosecution, which the Chamber may or may not ultimately accept, it is not necessary for the Prosecution to prove the direct participation of each accused in every criminal act. This theory of liability is based on the participation of the accused in a system created to further a criminal design that he shares, and there is sufficient evidence to support its use in this case.¹³²

    Zigic was put on specific notice that “the Chamber agrees with the Prosecutor that abundant evidence of the presence of the accused Zigic in the camps provides a basis upon which he could be found guilty of participation in the murders of Jasmin Izejiri and ‘Spija’ Mesic and the victims of Petrovdan”.¹³³ Accordingly, the Trial Chamber held that:

    [S]ufficient evidence has been presented, in the terms of Rule 98 bis, of the criminal conduct of the accused Radic and Zigic to allow the necessary discriminatory intent for Article 5 to be inferred on the basis of participation in a common design. The Chamber need go no further at this stage in indicating what its ultimate choice among legal theories of culpability will be.¹³⁴

50. The Appeals Chamber finds that the Prosecution gave clear and consistent notice, starting before the commencement of the trial and continuing throughout the Prosecution’s case, that it intended to rely on joint criminal enterprise. If any of the Appellants was surprised by Prosecution or Trial Chamber references to joint criminal enterprise responsibility, none of the Appellants brought a timely objection to the attention of the Trial Chamber.

51. The issue of adequacy of notice of joint criminal enterprise was raised in Kvocka’s final trial brief¹³⁵ and in Prcac’s closing argument¹³⁶ and was considered by the Trial Chamber in the Judgement. The Trial Chamber emphasized “that the charges in the Amended Indictment that the accused ‘instigated, committed or otherwise aided and abetted’ crimes may include responsibility for participating in a joint criminal enterprise designed to accomplish such crimes.”¹³⁷ The Trial Chamber held that it was “within its discretion to characterize the form of participation of the accused, if any, according to the theory of responsibility it deems most appropriate, within the limits of the Amended Indictment and insofar as the evidence permits.”¹³⁸

52. The Appellants’ trial submissions further demonstrate that they were on notice of the Prosecution’s reliance on joint criminal enterprise during the trial proceedings. For example, in the Motion for Judgement of Acquittal filed by Appellant Zigic on 6 November 2000 at the close of the Prosecution’s case, Zigic argued that the Prosecution had failed to prove either that he committed the crimes, or that “he had the ‘Common purpose’ with those who, allegedly, committed those crimes. On the contrary, he operated completely independently, with other motives for which those having the ‘Common purpose’ were conducting the legal criminal proceedings against him.”¹³⁹

53. The Appellants’ understanding of the nature of the Prosecution’s case can also be observed in their final trial briefs and closing arguments in which they advance legal and factual arguments relating to joint criminal enterprise.¹⁴⁰ Appellant Radic is the only accused who did not specifically argue the issue of joint criminal enterprise in his final brief, but his counsel expressly addressed the issue in the closing argument:

    To thank you for your patience and to add about common purpose. I didn't discuss this because I don't see what I could add to what I have written and what Mr. O'Sullivan has said. Even when talking about a common purpose, we have to bear in mind who we are talking about. A village policeman belonging to a police station department in Omarska. What common purpose can he have except to put his children through school ? It is difficult to push a common policeman into a common purpose. Let us not forget that the Muslims were the first to form their organisation and the SDS was the last. And if someone did have a purpose, they will come here and we have them here or, rather, you have them here almost all of them in your hands or at least indictments for all of them.¹⁴¹

54. Upon careful review of the trial record, the Appeals Chamber finds that the Prosecution gave timely, clear and consistent information to the Appellants, which detailed the factual basis of the charges against them and compensated for the Indictment’s failure to give proper notice of the Prosecution’s intent to rely on joint criminal enterprise responsibility. This ground of appeal is therefore dismissed.
    4. The Schedules and the factual findings of the Trial Chamber

55. The Appellants Radic and Kvocka contend that the Trial Chamber erred by failing to make factual findings in respect of each incident listed in the Schedules attached to the Indictment.¹⁴² Radic submits inter alia that the Trial Chamber violated his right to a fair and impartial trial as a result of this error.¹⁴³ He argues that the Schedules form an integral part of the Indictment¹⁴⁴ and points to the fact that they contain detailed information about the alleged crimes as provided for in articles 18 and 21 of the Statute.¹⁴⁵ The Trial Chamber made factual findings “in a general and summary manner”¹⁴⁶ and therefore failed to establish a connection between the Schedules and the factual determinations made in the Trial Chamber’s Judgement.¹⁴⁷ Radic concludes that the Trial Chamber violated the “spirit of the Rules of Procedure and Evidence” by pronouncing him guilty of certain crimes under counts of the Indictment without establishing the facts relating to these counts.¹⁴⁸ In Kvocka’s view, the Trial Chamber should have established the necessary elements of the crimes for each individual case listed in the Schedules, as the Trial Chamber did in the Celebici case.¹⁴⁹

56. In response, the Prosecution submits that the Trial Chamber’s approach to the evidence and its reasoning in relation to the crimes alleged in the Indictment reveal no error.¹⁵⁰ According to the Prosecution, a review of the Trial Chamber’s analysis shows that the “Trial Chamber in fact considered and made factual findings on the vast majority of crimes particularised in the Indictment and Schedules.”¹⁵¹ Factual findings as to the crimes committed in the Omarska camp can be found throughout the Trial Judgement and more particularly in part II (paragraphs 45-108) and part IV (paragraphs 329-610) of the Trial Judgement.¹⁵² The Prosecution also claims that the findings in relation to the various crimes are well founded on the evidence¹⁵³ and that the Trial Chamber’s approach was appropriate in a case in which the accused was found guilty as a participant in a joint criminal enterprise encompassing a very large number of serious crimes committed over a lengthy period of time by various participants.¹⁵⁴ With regard to Kvocka’s arguments, the Prosecution points to the fact that the Trial Chamber made comprehensive findings as to killings¹⁵⁵ and torture in the camp, considering all of the legal elements.¹⁵⁶

57. In order to assess the submissions of the parties under these grounds of appeal, the Appeals Chamber will first look at the pre-trial and trial decisions taken by the Trial Chamber in relation to the Schedules to determine their object and purpose and whether they were properly treated by the Trial Chamber. Secondly, the Appeals Chamber will study the approach taken by the Trial Chamber in the Trial Judgement and determine whether the Trial Chamber made the relevant factual findings in light of the Schedules and the incidents contained therein.

    (a) The object and purpose of the Schedules

58. The first Indictment was confirmed by Judge Lal Chand Vohrah on 9 November 1998 and did not include any annexes. Counts were phrased in a general manner; counts 1 to 3, for example, read:

    Between about 26 May 1992 and about 30 August 1992, Mladen RADIC, while serving as a shift commander at the Omarska camp, participated in the daily murder, torture, sexual assault, beating, humiliation, psychological abuse, and/or confinement in inhumane conditions, of Bosnian Muslim, Bosnian Croat and other non-Serb detainees at the Omarska camp, including: the rape and sexual assault of several of the female detainees, among them witnesses A and F; the murder and torture of unnamed detainees on Petrovdan (a Serbian holiday); and, the plunder of valuables from detainees.¹⁵⁷

59. Following various Defence motions alleging defects in the form of the first Indictment, the Trial Chamber issued the “Decision on Defence Preliminary Motions on the Form of the Indictment” on 12 April 1999. The Trial Chamber noted:

    [A]s a general rule, the degree of particularity required in indictments before the International Tribunal is different from, and perhaps not as high as, the particularity required in domestic criminal law jurisdictions…The massive scale of the crimes with which the International Tribunal has to deal makes it impracticable to require a high degree of specificity in such matters as the identity of the victims and the dates for the commission of the crimes – at any rate, the degree of specificity may not be as high as that called for in domestic jurisdictions.¹⁵⁸

60. The Trial Chamber went on to find that “it is reasonable to require the Prosecution, depending on the particular circumstances of each case, to provide more specific information, if available, as to the place, the time, the identity of the victims and the means by which the crime was perpetrated”.¹⁵⁹ The Prosecution was therefore directed, “if it is in a position to do so”,¹⁶⁰ to identify the names of the victims of the crimes alleged, the method of commission of the crime or the manner in which it was committed, and to provide information that would allow for the identification of the other participants in the crimes alleged against the Accused.¹⁶¹ The Trial Chamber also noted: “Merely to allege, as is done throughout the Amended Indictment, that the accused participated in certain crimes without identifying the specific acts alleged to have been committed by the accused does not meet the requirement of a ‘concise statement of facts’”¹⁶². The Trial Chamber therefore directed the Prosecution to provide more information as to the specific acts of the accused that would establish their criminal responsibility under Article 7(1) and 7(3) of the Statute.¹⁶³

61. Pursuant to the above-mentioned decision dated 12 April 1999, the Prosecution submitted on 31 May 1999 a second Amended Indictment together with four confidential annexes (“Schedules”).¹⁶⁴ The latter identified the names of victims in the crimes alleged against Kvocka, Kos, Radic and Zigic and provided the names of other participants in the crimes alleged as well as information regarding the manner in which the crimes alleged were committed.¹⁶⁵ Schedule A contains the particulars for the charges against Kvocka, Schedule B pertains to the charges against the Accused Milojica Kos, Schedule C to Radic and Schedule D to Zigic. The particulars in each of the Schedules were arranged according to the counts of the Indictment. Further Defence objections to the second Amended Indictment were rejected by the Trial Chamber in its “Decision on Defence Objections to the Amended Indictment” dated 8 November 1999. The Trial Chamber rejected the claims of the Defence that the second Amended Indictment was still too general and that “new crimes” were included in the Schedules.¹⁶⁶ The Trial Chamber found that the level of detail contained in the second Amended Indictment provided the accused with sufficient material to enable them to prepare their defence and that the Amended Indictment complied with the Trial Chamber’s Decision of 12 April 1999.¹⁶⁷ A fifth Schedule – Schedule E – containing the particulars for the charges against Prcac was added to the Indictment after the Trial Chamber granted the Prosecution’s request to join the trial of Prcac to that of Kvocka, Kos, Radic and Zigic.¹⁶⁸

62. The Appeals Chamber notes that the inclusion of the Schedules was a direct consequence of the directions given by the Trial Chamber in its decision dated 12 April 1999. Those directions stemmed from the necessity for an indictment to identify the specific acts alleged to have been committed by the accused, as well as from the necessity to provide information, to the extent possible, about the identity of the victims, the perpetrators and the manner in which the crimes were committed.

63. The Trial Chamber made further reference to the Schedules in its Decision on Defence Motions for Acquittal rendered on 15 December 2000. The Trial Chamber seems to have considered clearly that the Accused would be held responsible for certain crimes in the final judgement only if the events described in the Schedules to which the crimes refer could be established by the Prosecution beyond reasonable doubt. The Trial Chamber first recalled that the “Prosecution is required to present evidence not only that incidents or events occurred that constitute violations of the Statute, but also of the exact role each accused played in those incidents or events”.¹⁶⁹ It then went on to emphasize “that the Defence will not be expected to call evidence concerning alleged victims about whom no evidence at all has been produced by the Prosecutor”.¹⁷⁰ As a result, the Trial Chamber ordered that allegations in respect of nine individuals, whose names were contained in a confidential annex to that decision, be removed, as no evidence in their respect was produced by the Prosecution. The Trial Chamber entered a judgement of acquittal in favour of each accused in respect of those parts of the Indictment which concerned those nine individuals.¹⁷¹

64. The Prosecution chose to provide information as to the identity of the victims, the place and approximate date of the alleged offence in the Schedules and not to clutter the Indictment itself.¹⁷² The precise issue before the Appeals Chamber is whether this information contained in the Schedules amounts to material facts that have to be pleaded in the indictment and established beyond reasonable doubt by the Prosecution.

65. It is well established that an indictment is required to plead the material facts upon which the Prosecution relies, but not the evidence by which those material facts are to be proved.¹⁷³ The Appeals Chamber has taken the view that whether or not a fact is material depends upon the proximity of the accused person to the events for which that person is alleged to be criminally responsible.¹⁷⁴ “As the proximity of the accused person to those events becomes more distant, less precision is required in relation to those particular details, and greater emphasis is placed upon the conduct of the accused person himself upon which the Prosecution relies to establish his responsibility as an accessory or a superior to the persons who personally committed the acts giving rise to the charges against him”.¹⁷⁵ In the present case, the Trial Chamber was correct to direct the Prosecution to provide in the Indictment, to the extent possible, information about the identity of the victims, the perpetrators and the manner in which the crimes were committed. An indictment pleaded in very general terms would not have given adequate notice to the accused of the nature of the case they had to meet.¹⁷⁶ The Schedules completed the Indictment by giving further information which was sufficiently specific to give notice to the accused of the nature of the case they had to meet.

66. The Appellant Zigic argues that the use of the Schedules to plead crimes not charged in the Indictment is contrary to the approach of the Celebici Trial Chamber, which was endorsed by the Appeals Chamber, that only those criminal acts specifically enumerated in the Indictment should be considered.¹⁷⁷ The reference to the Celebici Appeal Judgement is misconceived. In that case, the Prosecution based its appeal on the submission that the Trial Chamber had not considered certain facts not set out in the Indictment. The Appeals Chamber found that:

    Given the generality with which those other incidents were alleged in the Indictment, the Indictment itself did not impose an obligation on the Trial Chamber to make findings on those incidents. It was incumbent upon the Prosecution, if it did in fact seek findings as to those matters, to identify them clearly to the Trial Chamber and to request it to make findings upon them.¹⁷⁸

    The Appeals Chamber did not state that such facts have to be incorporated in the body of the indictment. It clearly did not prevent the Prosecution from identifying them in the form of annexes or schedules to the indictment.

67. In a recent case, the Appeals Chamber held that “an indictment must necessarily, in the absence of a special order, consist of one document”,¹⁷⁹ that “schedules to an indictment form an integral part of the indictment”, and that they can contain essential material facts omitted from the body of the indictment.¹⁸⁰ In the case under appeal, the Appeals Chamber sees no reason to depart from this approach. The events contained in the Schedules amount to material facts that have to be proven before the accused can be held responsible for the crimes contained in the Indictment. The Trial Chamber in this case correctly reached this conclusion. In the above-mentioned Decision on Defence Motions for Acquittal, the Trial Chamber specifically acquitted the accused in respect of those parts of the Indictment which concern nine identified individuals appearing in the Schedules. The Trial Chamber therefore took the view that the accused could be found responsible for the crimes of persecution or murder, but not in respect of those nine victims, as the Prosecution had failed to produce any evidence relating to them during the Prosecution’s case.

68. The Appeals Chamber will now examine the approach taken by the Trial Chamber in its Judgement in order to determine whether it departed from the proper approach taken during the pre-trial and trial phases of the proceedings.

    (b) The approach taken by the Trial Chamber in the Trial Judgement

69. The Trial Chamber did not organize its factual findings in relation to each incident contained in the Schedules in a separate section of the Judgement. Instead, the Trial Chamber chose to have a general look at the running of the Omarska camp, making factual findings as to the general conditions of detention and treatment prevailing in the camp during the summer months of 1992.¹⁸¹ The overall conclusions reached by the Chamber are contained in paragraphs 116 and 117 of the Trial Judgement:

    116. The evidence is overwhelming that abusive treatment and inhumane conditions in the camps were standard operating procedure. Camp personnel and participants in the camp’s operation rarely attempted to alleviate the suffering of detainees. Indeed, most often those who participated in and contributed to the camp’s operation made extensive efforts to ensure that the detainees were tormented relentlessly. Many detainees perished as a result of the inhumane conditions, in addition to those who died as a result of the physical violence inflicted upon them.

    117. The Trial Chamber finds that the non-Serbs detained in these camps were subjected to a series of atrocities and that the inhumane conditions were imposed as a means of degrading and subjugating them. Extreme brutality was systematic in the camps and utilized as a tool to terrorize the Muslims, Croats, and other non-Serbs imprisoned therein.

70. The Trial Chamber then turned to the applicable law and legal findings before looking at the criminal responsibility of each accused in turn. This approach is different from that adopted by the Krnojelac Trial Chamber, which, seised of a similarly structured indictment, first made factual findings in relation to each incident listed in the schedules annexed to the indictment before looking at the responsibility of the accused.¹⁸² Similarly, in the Galic Trial Judgement, the Trial Chamber established whether the shelling or sniping incidents recounted in the schedules annexed to the Indictment were established beyond reasonable doubt before looking at the criminal responsibility of the accused himself.¹⁸³ In the case under review, factual findings are scattered in various places throughout the Trial Judgement. The Prosecution is correct in asserting that some factual findings in relation to the various incidents listed in the Schedules were made by the Trial Chamber mainly in part II and part IV of the Trial Judgement. This led the Trial Chamber to conclude first, in paragraph 202, that:

    The Trial Chamber finds that all of the acts enumerated under count 1 of the Amended Indictment were committed in Omarska camp; the acts or omissions were committed both systematically and randomly by those acting according to their given roles within the camp structure and those responding spontaneously and opportunistically to the condonation of violence this structure afforded, with an intent to discriminate against and ultimately subjugate the non-Serbs detained in the camp (emphasis added).

    and then in paragraph 323 of the Trial Judgement:

    The Trial Chamber has already found the following:

    (a) that the prerequisites necessary to sustain a charge under Articles 3 and 5 of the Statute have been satisfied;

    (b) that each of the crimes alleged in the Amended Indictment, in particular murder, torture, outrages upon personal dignity, inhumane acts, cruel treatment, and persecution were committed in Omarska camp (emphasis added).

71. With respect to these conclusions, it is necessary to determine whether the Trial Chamber found that every incident listed in the Schedules had therefore been proven beyond reasonable doubt by the Prosecution and that the Accused were therefore guilty in respect to each incident listed therein. The approach of the Trial Chamber in certain parts of the Trial Judgement shows that it refrained explicitly from finding Radic or Zigic guilty of some crimes in respect of certain incidents because the victims were not mentioned either among the counts of the Indictment or in the Schedules. Instead, the Trial Chamber used the evidence of these victims as corroborating evidence of a consistent pattern of conduct pursuant to Rule 93 of the Rules.¹⁸⁴

72. The Appeals Chamber notes that the Trial Chamber made factual findings in relation to some of the incidents detailed in the Schedules, and assured itself that instances of each crime contained in the Indictment had been committed, but it did not opt for a victim-by-victim or crime-by-crime analysis. The question is whether the Trial Chamber erred in doing so, and whether it failed to establish the facts underlying each count of the Indictment, thereby violating the principle of a fair trial and invalidating the entire Trial Judgement.

73. The Appeals Chamber considers that a systematic approach, consisting of making factual findings in relation to each incident contained in the Schedules and underlying the crimes contained in the Indictment, would have been the appropriate approach. An accused is entitled to know whether he has been found guilty of a crime in respect of the alleged incidents under the principle of a fair trial.¹⁸⁵

74. However, the Appeals Chamber finds that the generic approach adopted by the Trial Chamber does not render the Judgement invalid. A conviction on any given count may be reached as long as there are findings as to one incident contained therein . The Appeals Chamber has been able to find a great number of factual findings in part II and part IV of the Trial Judgement, underpinning the crimes for which the Appellants have been found guilty by the Trial Chamber. The language of the Indictment itself does not require that each and every incident be established beyond reasonable doubt before the accused can be found guilty under a certain count. Counts 8 to 10 of the Indictment read for example: “Miroslav Kvocka, Dragoljub Prcac, Milojica Kos and Mladjo Radic participated in the torture and beating of Bosnian Muslim, Bosnian Croat and other non-Serb prisoners in the Omarska camp, including those prisoners listed in Schedules A – E”.¹⁸⁶ The Trial Chamber established beyond reasonable doubt that some instances of persecutions, murder, torture and cruel treatment had been committed against prisoners of the Omarska camp, including some victims listed in the Schedules. Factual findings can be found throughout part II and part IV of the Trial Judgement.

75. The Appeals Chamber concludes that, even if the Trial Chamber made an error by failing to list the incidents established beyond reasonable doubt underlying each of the crimes for which the Appellants were found guilty, this error does not invalidate the Trial Judgement, as long as the Trial Chamber did actually make factual findings of individual crimes underlying the convictions of the Appellants. The Appeals Chamber will therefore not overturn any conviction for this reason, for which there are factual findings, provided that these facts had been pleaded in the Indictment.

76. The approach chosen by the Trial Chamber as to its factual findings has been explicitly challenged by the Appellants Kvocka and Radic only. However, the Appeals Chamber finds it appropriate to review this issue in relation to all the Appellants, where necessary.
    D. Common legal questions concerning joint criminal enterprise

77. Each of the Appellants challenges the legal principles the Trial Chamber applied when it found that the Appellants participated in a joint criminal enterprise. The Appellants do not raise discrete errors of law. Instead, they interweave factual errors with their challenges to the legal standards applied. In its Response, the Prosecution has attempted to reorganise the submissions of the Appellants into more structured allegations of legal errors and has responded to them in a consolidated manner.

78. The Appeals Chamber recalls at the outset that it maintains discretion under Article 25 of the Statute to determine which of the parties’ submissions warrant a reasoned written response.¹⁸⁷ The Appeals Chamber will begin by setting out the applicable law concerning joint criminal enterprise. Discrete legal issues relating to joint criminal enterprise will be dealt with in this section, so long as they are discernible in the Appellant’s submissions. The application of the law to the facts will be considered in the sections that deal with the individual Appellants.
    1. The definition of joint criminal enterprise

79. Although the Statute makes no explicit reference to “joint criminal enterprise ” as a mode of responsibility, the Appeals Chamber has held that participation in a joint criminal enterprise is a form of “commission” under Article 7(1) of the Statute.¹⁸⁸ Article 7(1), which sets out certain forms of individual criminal responsibility applicable to the crimes falling within the International Tribunal’s jurisdiction, reads:

    A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime.

80. The Tadic Appeal Judgement explains why participation in a joint criminal enterprise is a form of commission under Article 7(1):

    The above interpretation [that responsibility under Article 7(1) is not limited to those who physically commit the crimes] is not only dictated by the object and purpose of the Statute but is also warranted by the very nature of many international crimes which are committed most commonly in wartime situations. Most of the time these crimes do not result from the criminal propensity of single individuals but constitute manifestations of collective criminality: the crimes are often carried out by groups of individuals acting in pursuance of a common criminal design. Although only some members of the group may physically perpetrate the criminal act (murder, extermination, wanton destruction of cities, towns or villages, etc.), the participation and contribution of the other members of the group is often vital in facilitating the commission of the offence in question. It follows that the moral gravity of such participation is often no less – or indeed no different – from that of those actually carrying out the acts in question. ¹⁸⁹

81. A joint criminal enterprise requires a plurality of co-perpetrators who act pursuant to a common purpose involving the commission of a crime in the Statute.

82. Three broad forms of joint criminal enterprise have been recognised by the International Tribunal’s jurisprudence.¹⁹⁰ In the first form of joint criminal enterprise, all of the co-perpetrators possess the same intent to effect the common purpose.¹⁹¹ The second form of joint criminal enterprise, the “systemic” form, a variant of the first form, is characterized by the existence of an organized criminal system, in particular in the case of concentration or detention camps.¹⁹² This form of joint criminal enterprise requires personal knowledge of the organized system and intent to further the criminal purpose of that system.¹⁹³

83. The third, “extended” form of joint criminal enterprise entails responsibility for crimes committed beyond the common purpose, but which are nevertheless a natural and foreseeable consequence of the common purpose.¹⁹⁴ The requisite mens rea for the extended form is twofold. First, the accused must have the intention to participate in and contribute to the common criminal purpose. Second, in order to be held responsible for crimes which were not part of the common criminal purpose, but which were nevertheless a natural and foreseeable consequence of it, the accused must also know that such a crime might be perpetrated by a member of the group, and willingly take the risk that the crime might occur by joining or continuing to participate in the enterprise.¹⁹⁵

84. The Appeals Chamber understands that the Trial Chamber considered the crimes in Omarska camp to have been committed primarily as part of a systemic type of joint criminal enterprise. As the Trial Chamber explained:

    Although the first two categories enunciated by Tadic are quite similar, and all three are applicable to this case to some degree, the second category, which embraces the post war “concentration camp” cases, best resonates with the facts of this case and is the one upon which the Trial Chamber will focus most of its attention. The Trial Chamber will examine and elaborate upon the standards to be applied in assessing criminal liability of participants in a detention facility which operates as a joint criminal enterprise.¹⁹⁶

85. However, in other places in the Trial Judgement, the Trial Chamber also contemplates the possibility of an extended form of joint criminal enterprise:

    The Trial Chamber also wishes to emphasize that crimes committed in furtherance of the joint criminal enterprise that were natural or foreseeable consequences of the enterprise can be attributed to any who knowingly participated in a significant way in the enterprise.¹⁹⁷

    Similarly, any crimes that were natural or foreseeable consequences of the joint criminal enterprise of the Omarska camp, including sexual violence, can be attributable to participants in the criminal enterprise if committed during the time he participated in the enterprise.¹⁹⁸

86. The Appeals Chamber notes, however, that the Trial Chamber did not hold any of the Appellants responsible for crimes beyond the common purpose of the joint criminal enterprise. Nonetheless, the Appeals Chamber wishes to affirm that an accused may be responsible for crimes committed beyond the common purpose of the systemic joint criminal enterprise, if they were a natural and foreseeable consequence thereof . However, it is to be emphasized that this question must be assessed in relation to the knowledge of a particular accused. This is particularly important in relation to the systemic form of joint criminal enterprise, which may involve a large number of participants performing distant and distinct roles. What is natural and foreseeable to one person participating in a systemic joint criminal enterprise, might not be natural and foreseeable to another, depending on the information available to them. Thus, participation in a systemic joint criminal enterprise does not necessarily entail criminal responsibility for all crimes which, though not within the common purpose of the enterprise, were a natural or foreseeable consequence of the enterprise. A participant may be responsible for such crimes only if the Prosecution proves that the accused had sufficient knowledge such that the additional crimes were a natural and foreseeable consequence to him.
    2. What is the difference between co-perpetration and aiding and abetting ?

87. The submissions of the Appellants raise questions concerning the proper distinction between co-perpetration and aiding and abetting.¹⁹⁹ The Prosecution responds that when an accused is criminally liable based on his participation in a joint criminal enterprise, and the requisite mens rea is established, he should be regarded as having “committed” that crime.²⁰⁰

88. The Trial Chamber considered that a co-perpetrator of a joint criminal enterprise shares the intent to carry out the joint criminal enterprise and actively furthers the enterprise. An aider or abettor, on the other hand, need not necessarily share the intent of the other participants; he need only be aware that his contribution assists or facilitates a crime committed by the other participants. The Trial Chamber held that the shared intent may be inferred from the knowledge of the criminal nature of the enterprise and the continued significant participation therein. It acknowledged that there may be difficulties in distinguishing between an aider or abettor and a co-perpetrator, in particular in the case of mid-level accused who did not physically commit crimes. When, however, an accused participated in a crime that advanced the goals of the criminal enterprise, the Trial Chamber considered him more likely to be held responsible as a co-perpetrator than as an aider or abettor.²⁰¹

89. The Appeals Chamber notes that in the Vasiljevic Appeal Judgement, the Appeals Chamber discussed the correct distinction between co-perpetration by means of a joint criminal enterprise and aiding and abetting:

    (i) The aider and abettor carries out acts specifically directed to assist, encourage or lend moral support to the perpetration of a certain specific crime (murder, extermination, rape, torture, wanton destruction of civilian property, etc.), and this support has a substantial effect upon the perpetration of the crime. By contrast, it is sufficient for a participant in a joint criminal enterprise to perform acts that in some way are directed to the furtherance of the common design.

    (ii) In the case of aiding and abetting, the requisite mental element is knowledge that the acts performed by the aider and abettor assist the commission of the specific crime of the principal. By contrast, in the case of participation in a joint criminal enterprise, i.e. as a co-perpetrator, the requisite mens rea is intent to pursue a common purpose.²⁰²

90. Applying the Vasiljevic definition, the Appeals Chamber considers that whether an aider and abettor is held responsible for assisting an individual crime committed by a single perpetrator or for assisting in all the crimes committed by the plurality of persons involved in a joint criminal enterprise depends on the effect of the assistance and on the knowledge of the accused. The requirement that an aider and abettor must make a substantial contribution to the crime in order to be held responsible applies whether the accused is assisting in a crime committed by an individual or in crimes committed by a plurality of persons. Furthermore, the requisite mental element applies equally to aiding and abetting a crime committed by an individual or a plurality of persons. Where the aider and abettor only knows that his assistance is helping a single person to commit a single crime, he is only liable for aiding and abetting that crime. This is so even if the principal perpetrator is part of a joint criminal enterprise involving the commission of further crimes. Where, however, the accused knows that his assistance is supporting the crimes of a group of persons involved in a joint criminal enterprise and shares that intent, then he may be found criminally responsible for the crimes committed in furtherance of that common purpose as a co-perpetrator.

91. The Appeals Chamber emphasizes that joint criminal enterprise is simply a means of committing a crime; it is not a crime in itself.²⁰³ Therefore, it would be inaccurate to refer to aiding and abetting a joint criminal enterprise. The aider and abettor assists the principal perpetrator or perpetrators in committing the crime.

92. The Appeals Chamber notes that the distinction between these two forms of participation is important, both to accurately describe the crime and to fix an appropriate sentence. Aiding and abetting generally involves a lesser degree of individual criminal responsibility than co-perpetration in a joint criminal enterprise.²⁰⁴
    3. What level of contribution is required to show participation in a joint criminal enterprise?

93. Each of the Appellants raises questions concerning the level of contribution required to be a participant in a joint criminal enterprise.²⁰⁵

94. The Prosecution responds that the determination of what types of conduct amount to a significant contribution is, as stated in the Trial Judgement, to be based on the facts.²⁰⁶ It further states that “any participation which enables the system to run more smoothly or without disruption would constitute a case of significant contribution”.²⁰⁷

95. The Trial Chamber held that:

    [P]ersons who work in a job or participate in a system in which crimes are committed on such a large scale and systematic basis incur individual criminal responsibility if they knowingly participate in the criminal endeavor, and their acts or omissions significantly assist or facilitate the commission of crimes.²⁰⁸

    It stressed that not everyone working in a detention camp where conditions are abusive automatically becomes liable as a participant in a joint criminal enterprise:

    The participation in the enterprise must be significant. By significant, the Trial Chamber means an act or omission that makes an enterprise efficient or effective ; e.g. a participation that enables the system to run more smoothly or without disruption. Physical or direct commission of a serious crime that advances the goal of the criminal enterprise would constitute a significant contribution.²⁰⁹

    The Trial Chamber went on to consider that the significance of the contribution to the joint criminal enterprise is to be determined on a case by case basis, taking into account a variety of factors, among them the position of the accused, the amount of time spent participating with knowledge of the criminal nature of the system, the level and efficiency of the participation, and any efforts to prevent crimes . The Trial Chamber attributed particular importance to any evidence of a shared intent or agreement with the criminal system, and the physical perpetration of crimes.²¹⁰

96. The Appeals Chamber has explained the actus reus of the participant in a joint criminal enterprise as follows:

    First, a plurality of persons is required. They need not be organised in a military, political or administrative structure. Second, the existence of a common purpose which amounts to or involves the commission of a crime provided for in the Statute is required. There is no necessity for this purpose to have been previously arranged or formulated. It may materialise extemporaneously and be inferred from the facts. Third, the participation of the accused in the common purpose is required, which involves the perpetration of one of the crimes provided for in the Statute. This participation need not involve commission of a specific crime under one of the provisions (for example murder, extermination, torture or rape), but may take the form of assistance in, or contribution to, the execution of the common purpose .²¹¹

97. The Appeals Chamber notes that, in general, there is no specific legal requirement that the accused make a substantial contribution to the joint criminal enterprise. However, there may be specific cases which require, as an exception to the general rule, a substantial contribution of the accused to determine whether he participated in the joint criminal enterprise.²¹² In practice, the significance of the accused’s contribution will be relevant to demonstrating that the accused shared the intent to pursue the common purpose.

98. The Appeals Chamber agrees that the Prosecutor need not demonstrate that the accused’s participation is a sine qua non, without which the crimes could or would not have been committed.²¹³ Thus, the argument that an accused did not participate in the joint criminal enterprise because he was easily replaceable must be rejected.²¹⁴

99. Appellant Kvocka appears to argue that a co-perpetrator in a joint criminal enterprise must physically commit part of the actus reus of a crime in order to be criminally liable.²¹⁵ The Appeals Chamber disagrees. A participant in a joint criminal enterprise need not physically participate in any element of any crime, so long as the requirements of joint criminal enterprise responsibility are met. As the Tadic Appeals Chamber explained, “[a]lthough only some members of the group may physically perpetrate the criminal act (murder, extermination, wanton destruction of cities, towns or villages, etc.), the participation and contribution of the other members of the group is often vital in facilitating the commission of the offence in question.”²¹⁶ This is particularly evident with respect to the systemic form of joint criminal enterprise at issue in the present case.
    4. Can participation in a joint criminal enterprise be inferred from the accused’s position in a camp?

100. The Appellants argue that a significant contribution cannot be inferred from their position in the camp and that their low positions of employment in the camps precluded responsibility for crimes committed there.²¹⁷ The Prosecution responds that a position of authority, while not a legal requirement for joint criminal enterprise responsibility, is still a factor in the determination of responsibility.²¹⁸

101. The Appeals Chamber affirms that the de facto or de jure position of employment within the camp is only one of the contextual factors to be considered by the Trial Chamber in determining whether an accused participated in the common purpose. A position of authority, however, may be relevant evidence for establishing the accused’s awareness of the system, his participation in enforcing or perpetuating the common criminal purpose of the system, and, eventually, for evaluating his level of participation for sentencing purposes.²¹⁹

102. In a related argument, Appellant Prcac has challenged the Trial Chamber’s reliance on post-World War II jurisprudence, arguing that it is inapplicable because these cases required, inter alia, membership in the SS.²²⁰ The Prosecutor points out that the Appellant’s arguments are factually incorrect, because some of those convicted in the post-World War II cases were inmates of the camps.²²¹

103. The Appeals Chamber notes that in assessing the level of contribution to a joint criminal enterprise which can be inferred from positions held in a camp, the Trial Chamber reviewed some of the post-World War II jurisprudence. Upon review, the Trial Chamber held that:

     The concentration camp cases seemingly establish a rebuttable presumption that holding an executive, administrative, or protective role in a camp constitutes general participation in the crimes committed therein. An intent to further the efforts of the joint criminal enterprise so as to rise to the level of co-perpetration may also be inferred from knowledge of the crimes being perpetrated in the camp and continued participation which enables the camp’s functioning.²²²

     The Appeals Chamber finds that the Trial Chamber did not err in its discussion of these early cases. As it is clear that there is no requirement of “membership” in a group, beyond playing a role in a camp, in order to incur joint criminal enterprise responsibility, Appellant Prcac’s submission is rejected.

104. In another related argument, Appellant Radic submits that he should not be found guilty as a co-perpetrator since the Trial Chamber acquitted him of all charges based on superior responsibility.²²³ The suggestion implicit in this argument is that a person lacking sufficient authority to be considered a superior would necessarily also lack sufficient authority to make a “significant contribution” to a systemic joint criminal enterprise. The Appeals Chamber notes that participation in a joint criminal enterprise pursuant to Article 7(1) of the Statute and superior responsibility pursuant to Article 7(3) of the Statute are distinct categories of individual criminal responsibility, each with specific legal requirements.²²⁴ Joint criminal enterprise responsibility does not require any showing of superior responsibility, nor the proof of a substantial or significant contribution.²²⁵ Moreover, it is not appropriate to convict under both Article 7(1) and Article 7 (3) of the Statute for the same crime. Where the legal requirements of both forms of responsibility are met, a conviction should be entered on the basis of Article 7(1) only, and the superior position should be taken into account as an aggravating factor in sentencing.²²⁶ Thus, Appellant Radic’s argument is dismissed.
     5. Does participation in a joint criminal enterprise require a desire for the result?

105. Each of the Appellants suggests that he lacked the necessary intent to further the joint criminal enterprise, and that he was merely doing his job.²²⁷ The Prosecution responds that the shared criminal intent to further the joint criminal enterprise “implies neither personal enthusiasm nor satisfaction, nor personal initiative in performing the relevant contribution to the common criminal design.”²²⁸ The Prosecution emphasizes that the motives of the accused are immaterial for the purposes of assessing that accused’s intent and criminal responsibility.²²⁹

106. The Appeals Chamber agrees with the Prosecution and notes that it has repeatedly confirmed the distinction between intent and motive:

     The Appeals Chamber further recalls the necessity to distinguish specific intent from motive. The personal motive of the perpetrator of the crime of genocide may be, for example, to obtain personal economic benefits, or political advantage or some form of power. The existence of a personal motive does not preclude the perpetrator from also having the specific intent to commit genocide. In the Tadic appeal judgement the Appeals Chamber stressed the irrelevance and ‘inscrutability of motives in criminal law’.²³⁰

     Shared criminal intent does not require the co-perpetrator’s personal satisfaction or enthusiasm or his personal initiative in contributing to the joint enterprise.²³¹ Therefore, the Appellants’ argument in this regard is rejected.

107. To the extent that the submissions of the Appellants Prcac and Radic raise defences of superior orders or duress, these arguments will be considered in the sections dealing with their individual grounds of appeal.²³²
     6. Does a participant in a joint criminal enterprise need to share the discriminatory intent for persecutions?

108. Some of the arguments advanced by the Appellants suggest that the Trial Chamber erred in failing to accurately assess whether the Appellants shared the necessary mental element required for persecutions, and instead inferred the necessary discriminatory intent from the fact that the Appellants worked at the camp and thereby knowingly participated in the joint criminal enterprise.²³³ In response, the Prosecution asserts that the required intent exists where an accused is aware of the nature of the intent of the other co-perpetrators and, guided by such knowledge, voluntarily contributes to that common design, meaning to make such a contribution.²³⁴

109. The Trial Chamber held that:

     Where the crime requires special intent, such as the crime of persecution charged in count 1 of the Amended Indictment, the accused must also satisfy the additional requirements imposed by the crime, such as the intent to discriminate on political, racial, or religious grounds if he is a co-perpetrator. However, if he is an aider or abettor, he need only have knowledge of the perpetrator’s shared intent. This shared knowledge too can be inferred from the circumstances. If the criminal enterprise entails random killing for financial profit, for instance, that would not necessarily demonstrate an intent to discriminate on “political, racial or religious grounds ”. If the criminal enterprise entails killing members of a particular ethnic group, and members of that ethnic group were of a differing religion, race, or political group than the co-perpetrators, that would demonstrate an intent to discriminate on political, racial, or religious grounds. Thus, a knowing and continued participation in this enterprise could evince an intent to persecute members of the targeted ethnic group.²³⁵

110. The Appeals Chamber affirms the Trial Chamber’s conclusion that participants in a basic or systemic form of joint criminal enterprise must be shown to share the required intent of the principal perpetrators. Thus, for crimes of persecution, the Prosecution must demonstrate that the accused shared the common discriminatory intent of the joint criminal enterprise.²³⁶ If the accused does not share the discriminatory intent, then he may still be liable as an aider and abettor if he knowingly makes a substantial contribution to the crime. Allegations of factual errors in relation to this issue are addressed in the sections of this Judgement dealing with the individual Appellants.
     7. Can an accused be held responsible for crimes of a joint criminal enterprise during absences from the camp?

111. Implicit in a number of the Appellants’ arguments is the suggestion that they should not be held responsible for crimes committed when they were not present at the camp. Appellant Zigic describes this possibility as “an utterly unnatural construction ”.²³⁷ Appellant Kvocka argues that a co-perpetrator is one “who participated in the crime with perpetration of act (although not act of the commission) which is most closely objectively connected with commission of crime, so that perpetration of the crime is one with acts of co-perpetrator” (sic).²³⁸ In the view of the Prosecution, it would be artificial and impracticable to require precise knowledge of each and every crime committed in the course of a large-scale, ongoing joint criminal enterprise.²³⁹

112. The Appeals Chamber affirms that a co-perpetrator in a joint criminal enterprise need not physically commit any part of the actus reus of the crime involved.²⁴⁰ Nor is the participant in a joint criminal enterprise required to be physically present when and where the crime is being committed.²⁴¹

113. While it is legally possible for an accused to be held liable for crimes committed outside of his or her presence, the application of this possibility in a given case depends on the evidence. Thus, Zigic’s argument that he cannot be liable for all the crimes committed at Omarska camp when he was only present at the camp for a total of two hours will be considered in the section of this Judgement relating to Zigic’s individual grounds of appeal.²⁴²

114. The Prosecution has raised an additional jurisprudential question suggesting that the Trial Chamber should not have excluded criminal responsibility for crimes committed prior to an accused’s arrival at the camp or after his departure from the camp.²⁴³ The Appeals Chamber notes that the Trial Chamber’s decision to limit the temporal responsibility of the accused, as mentioned in paragraph 349 of the Trial Judgement,²⁴⁴ was explicitly based on an interlocutory finding relating only to Prcac.²⁴⁵ In the Decision on Defence Motions for Acquittal, the Trial Chamber found that there was a “total lack of evidence of any involvement before [Prcac’s] arrival [at the camp]”.²⁴⁶ It can be inferred from the Trial Chamber’s reliance on this decision in the Trial Judgement that the Prosecution also failed to prove beyond a reasonable doubt that the Appellants were involved in crimes committed prior to or after their departure from the camp. These rulings appear to be factual findings rather than a legal temporal limitation. The Appeals Chamber declines to consider the legal issue raised by the Prosecution in the circumstances of the present case, more particularly having regard to the fact that the Prosecution has not appealed.
     8. Is the Prosecution required to prove the existence of an agreement?

115. Another legal issue raised in the Appellants’ submissions is the question whether the Prosecution must prove an agreement between the accused and the other participants in the joint criminal enterprise.²⁴⁷ In particular, Appellant Kvocka appears to suggest that he cannot be liable for participating in a joint criminal enterprise at Omarska camp when he was not involved in or responsible for its creation.²⁴⁸

116. The Prosecution responds that there is no necessity for a plan, design or purpose to have been previously arranged or formulated for a joint criminal enterprise to exist; the common plan or purpose may materialize extemporaneously and be inferred from the fact that a plurality of persons acted in unison to put a joint criminal enterprise into effect.²⁴⁹ The Prosecution submits that once an accused wilfully joins and significantly contributes to a system of ill-treatment, the relevant “agreement” is either subsumed in, or replaced by, the acceptance of the system as a whole.²⁵⁰

117. The jurisprudence on this issue is clear. Joint criminal enterprise requires the existence of a common purpose which amounts to or involves the commission of a crime. The common purpose need not be previously arranged or formulated; it may materialize extemporaneously.²⁵¹

118. In the Krnojelac Appeal Judgement, the Appeals Chamber confirmed that the systemic form of joint criminal enterprise does not require proof of an agreement :

     The Appeals Chamber considers that, by requiring proof of an agreement in relation to each of the crimes committed with a common purpose, when it assessed the intent to participate in a systemic form of joint criminal enterprise, the Trial Chamber went beyond the criterion set by the Appeals Chamber in the Tadic case. Since the Trial Chamber’s findings showed that the system in place at the KP Dom sought to subject non-Serb detainees to inhumane living conditions and ill-treatment on discriminatory grounds, the Trial Chamber should have examined whether or not Krnojelac knew of the system and agreed to it, without it being necessary to establish that he had entered into an agreement with the guards and soldiers – the principal perpetrators of the crimes committed under the system – to commit those crimes.²⁵²

119. Accordingly, the Appellants’ arguments concerning the non-existence of an agreement must be dismissed.
     III. SEPARATE GROUNDS OF APPEAL OF KVOCKA

120. In his Appeal Brief, Kvocka has identified eight grounds of appeal. The Appeals Chamber notes that Kvocka has withdrawn his first ground of appeal.²⁵³ As the analysis of some of the remaining grounds depends on the resolution of some issues raised in other grounds, the Appeals Chamber has decided to address Kvocka’s grounds of appeal in a different order from that which appears in the Kvocka Appeal Brief.
     A. Kvocka’s interview with the Prosecution (ground of appeal 2)

121. As his second ground of appeal, Kvocka contends that there were errors relating to his interview with the Prosecution. Kvocka raises two principal arguments in this regard: (i) he contends that the transcript of the interview he gave to the Prosecution shortly after his arrest should not have been admitted into evidence, and (ii) he also contests the Trial Chamber’s reading of that interview, arguing that it does not support the proposition the Trial Chamber cited it for, namely, that there were shift leaders in the Omarska camp. This latter error, he argues, impacts upon the Trial Chamber’s findings on joint criminal enterprise as regards his “role, significance and status”, as well as the credibility to be attached to his testimony.²⁵⁴
     1. Admission of the record of the interview into evidence

122. Kvocka voluntarily attended an interview conducted by Prosecution investigators on 24 June 1998. During the course of the interview, he spoke of facts regarding the establishment and organisation of the Omarska camp.²⁵⁵ The Prosecution subsequently requested that the transcript of the interview be admitted into evidence and the Trial Chamber granted the request over the objections of Kvocka.²⁵⁶ In doing so, the Trial Chamber considered its oral decision of 4 July 2000,²⁵⁷ in which it held that the preliminary statements of witnesses should not in principle be admitted into evidence, to relate solely to witnesses’ preliminary statements within the meaning of Rule 66 of the Rules.²⁵⁸ The Trial Chamber cited the Decision of the President of the Tribunal in Delalic ²⁵⁹ in support of its decision, noting that the President found that there was “a fundamental difference between being an accused, who might testify as a witness if he so chooses, and a witness”.²⁶⁰ Kvocka submits that the Trial Chamber erred in admitting the record of his interview into evidence.

123. The Appeals Chamber understands Kvocka to be raising three reasons to support his position. First, Kvocka contends that the Trial Chamber’s reliance on the decision in Delalic was incorrect given that the essence of that decision related to whether a particular written document may be admitted into evidence without accompanying testimony.²⁶¹ He also argues that, contrary to the Delalic Decision, there should be no distinction between an accused who testifies as a witness and a witness summoned by the Prosecution or the Defence.²⁶² Second, he submits that the decision of the Trial Chamber in question is contrary to its oral decision of 4 July 2000.²⁶³ Third, he reasons that the decision of the Trial Chamber violates the principle of orality of debates as well as the principle of equality.²⁶⁴ He submits that there is a difference between the use that can be made of preliminary statements of an accused who subsequently testifies and the use that can be made of preliminary statements of an accused who does not testify.²⁶⁵ Kvocka submits that it is only the latter that may be entered into evidence.²⁶⁶ Kvocka argues that, since he testified, the Prosecution was able to cross-examine him with respect to all relevant facts including those that were the subject of his earlier interview.²⁶⁷

124. For its part, the Prosecution considers Kvocka’s argument relating to the Trial Chamber’s oral decision of 4 July 2000 to be misconceived. It argues that “there is a difference between the use that can be made of a statement of a witness, and the use that can be made of a statement of an accused”,²⁶⁸ and that the Trial Chamber’s oral decision concerned “prior statements of witnesses generally, and not the prior statements of an accused”.²⁶⁹ The Prosecution submits that the jurisprudence of the Tribunal shows that “an accused’s interview statements, if voluntarily made and if in compliance with all requirements in Rule 42 are admissible as evidence and may be used against the accused, if probative ”.²⁷⁰

125. The Appeals Chamber does not consider the Trial Chamber to have erred in relying on the decision of the President of the Tribunal in Delalic. Although the subject matter of that decision differs from the subject matter of the decision in question, the relevant finding of the President is not limited to the facts of that particular case. The finding in question was that “[t]here is a fundamental difference between being an accused, who might testify as a witness if he so chooses, and a witness”.²⁷¹ The President explained this distinction with the aid of two examples. First, there are provisions in the Rules relating to the testimony of witnesses that are inapplicable to an accused and incompatible with his rights. Second, the Rules contain separate definitions and separate substantive positions for an accused as opposed to witnesses. For these reasons, the President considered it clear that “an accused cannot be considered for all purposes as a witness.”²⁷² The principle enunciated is thus not limited to the facts of the Delalic Decision and can be applied outside its confines. In its own decision, the Trial Chamber considered that neither the Statute nor the Rules nor the Tribunal’s own practice “treat a witness in the same way as an accused testifying under oath” and that “an accused enjoys specific protection with regard to respect for the rights of the defence”.²⁷³ The Appeals Chamber can see no fault in this reasoning. Indeed, it confirms that an accused who chooses to testify as a witness is not to be treated qua witness but as an accused testifying qua witness.

126. In light of the foregoing, the Trial Chamber was clearly entitled to hold that its oral decision of 4 July 2000 related “only to witnesses’ prior statements within the meaning of Rule 66 of the Rules”²⁷⁴ and not to the prior statements of an accused testifying qua witness. The decision to admit the transcript of Kvocka’s interview into evidence therefore in no way contradicts the Trial Chamber’s earlier oral decision.

127. Given that a witness cannot be treated in the same way as an accused who testifies and the rules governing the testimony of witnesses cannot be mechanically extended to cover the testimony of accused persons who testify, Kvocka’s third line of reasoning would require an exception to the rules governing the testimony of accused persons who testify. No such exception exists. Further, the Appeals Chamber notes that Kvocka’s preliminary interview was admitted into evidence in addition to, not instead of, his subsequent testimony. Thus, contrary to Kvocka’s argument, the principle of orality of debates has not been violated.

128. The Appeals Chamber observes that “a pre-requisite for admission of evidence must be compliance by the moving party with any relevant safeguards and procedural protections and that it must be shown that the relevant evidence is reliable.”²⁷⁵ The Trial Chamber, in its decision, considered that Kvocka’s interview was “conducted in accordance with Rules 63 and 42(A)(iii) of the Rules which set down certain measures protecting the rights of the accused” and noted that Kvocka was “clearly informed of his rights in the presence of his Counsel”.²⁷⁶ The Appeals Chamber takes note of the fact that Kvocka does not allege a procedural irregularity in relation to the interview itself. Indeed, he considers it to have been procedurally flawless.²⁷⁷ In the absence of such a flaw, this argument cannot be upheld.

129. For these reasons, this sub-ground of appeal is dismissed.
     2. The Trial Chamber’s reading of the interview

130. Having found that the Trial Chamber did not err in allowing the transcript of the interview to be entered into evidence, the Appeals Chamber now turns to Kvocka’s arguments relating to the Trial Chamber’s reading of the interview. Kvocka contests the basis of the Trial Chamber’s statement that he “initially acknowledged that there were shift leaders in the camp.”²⁷⁸ He contends that he made no such acknowledgement and that the language used in the interview does not support such a conclusion.²⁷⁹ Initially, Kvocka also submitted that the Trial Chamber failed to appreciate the difference between the police shift and the guard shift of the camp.²⁸⁰ However, considering this to be within the scope of his third ground of appeal, Kvocka subsequently restricted himself to his argument relating to the misinterpretation of the interview.²⁸¹ As such, the Appeals Chamber will also restrict its consideration of this sub-ground of appeal to this matter.

131. To the question whether there was “somebody below [him], or Mr. Meakic and above the other police guards, for instance, a shift leader”, Kvocka states that his reply was: “I know the term. I think that Meakic determined three people to be as if in front of the shift.”²⁸² However, paragraph 363 of the Trial Judgement indicates that Kvocka responded: “ I know the term. I think that Meakic appointed three people to be shift leader.”²⁸³ Kvocka denies that he ever said this and argues that there is no linguistic or logical reason to support such a conclusion.²⁸⁴ He initially raised the possibility that the explanation for this discrepancy may lie in an inaccurate translation of his testimony,²⁸⁵ but subsequently withdrew this line of reasoning.²⁸⁶

132. The Prosecution submits that Kvocka has failed to demonstrate an error on the part of the Trial Chamber. It argues that Kvocka’s interview with the Prosecution “contains several references to shift leaders, and to the roles of these individuals as being senior to the guards at the camp”.²⁸⁷ The Prosecution further argues that Kvocka does not explain what is meant by the phrase “in front of shifts” and does not explain why it was not open to a reasonable trier of fact to reach the conclusion of the Trial Chamber.²⁸⁸

133. In his reply, Kvocka maintains that he did not mention the term “shift leader” at all given that no such position existed either in the extraordinary security system or in the Omarska Police Station Department.²⁸⁹ Kvocka argues that the reason he knew what the job of a shift leader entailed was due to their duties being stated in the “Rules on Internal Organization of Republican Secretariat for Internal Affairs”.²⁹⁰

134. Despite the withdrawal of Kvocka’s translation error argument, he continues to use the phrase “in front of the shift” and not the phrase “shift leader” as used in the Trial Judgement. The Appeals Chamber notes that Kvocka does so without providing an explanation as to the meaning to be attributed to this phrase. Nevertheless, the Appeals Chamber need not speculate on the correct translation. Even assuming arguendo that Kvocka’s interpretation is the correct one, the Appeals Chamber considers it within the discretion of a reasonable trier of fact to determine that “in front of the shift” can be read as “shift leader”. This is especially so given the question to which the phrase proved to be the answer. According to Kvocka, the exchange proceeded, in relevant part, as follows:

     Q: … is there or was there somebody below you or Mr. Meakic and above the other police guards, for instance, a shift leader?

     A: I know the term. I think that Meakic determined three people to be as if in front of the shift.²⁹¹

     From this, a reasonable trier of fact could properly have inferred that Kvocka was treating the phrase “in front of the shift” synonymous with the phrase “shift leader”. The inference drawn by the Trial Chamber was therefore a valid one.

135. In any event, the Appeals Chamber notes that the Trial Chamber did not find Kvocka to be a shift leader; rather, it held that he was the functional equivalent of the deputy commander of the guard service.²⁹² While Kvocka challenges this finding in his third ground of appeal, the Appeals Chamber observes at this stage that Kvocka’s present argument would have no impact on the Trial Chamber’s findings as to his role, significance or status in the joint criminal enterprise. Therefore, even assuming arguendo that Kvocka’s assertions are correct, neither his conviction nor his sentence would be affected. Furthermore, any alleged error would not affect the credibility attached to Kvocka’s testimony given that this was not challenged by the Trial Chamber. This ground of appeal is dismissed.
     B. Kvocka’s role and position in the Omarska camp (ground of appeal 3 )

136. Kvocka submits that he was a police officer-patrolman and the Trial Chamber erred in finding that he had the de facto status of a deputy commander of the guard service.²⁹³ The Appeals Chamber understands that he advances three main arguments to support this submission: (a) the Trial Chamber’s findings were contradictory and unclear, (b) the Trial Chamber relied for its findings on unreliable evidence, and (c) the material fact that he was de facto deputy commander was not pleaded in the Indictment.
     1. The Trial Chamber’s findings

137. The Trial Chamber found that Kvocka held a de facto position of authority in the camp and that he participated in the operation of the camp as the functional equivalent of the deputy commander of the guard service.²⁹⁴ Prior to the establishment of the camp, Kvocka had been a patrol leader in the Omarska police station department. In this position, he had no formal authority over the other police officers, although there was a slight difference in authority between a sector leader and the other policemen.²⁹⁵ Following an increase in the size of the Omarska police station department, Kvocka was elevated to a position of de facto deputy or assistant commander. The increase in size should have been accompanied by the assignment of deputy and assistant commanders, but there were none available. Therefore, as was common in the former Yugoslavia, Kvocka, as one of the senior policemen, took over de facto the function of a deputy commander.²⁹⁶ When the Omarska camp was established, Zeljko Meakic, who was the commander of the Omarska police station department at that time, organized the service in the camp after the model of the Omarska police station department. In this way, Kvocka assumed the function of deputy commander in the camp.²⁹⁷

138. The Trial Chamber partially based its findings on the evidence given by Kvocka. He had denied that he had any authority in the camp, but had acknowledged that he had transmitted Zeljko Meakic’s orders to the guards, and that he had replaced Zeljko Meakic in his absence. Additionally, the Trial Chamber relied on the testimony of several witnesses who stated that Kvocka had influence on and authority over the guards. The Trial Chamber concluded that Kvocka had significantly participated in the operation of the camp, wielding considerable influence.²⁹⁸ However, the Trial Chamber found that the evidence did not sufficiently demonstrate a superior-subordinate relationship between Kvocka and the known perpetrators of crimes in the camp. The Trial Chamber, therefore, held that Kvocka did not incur superior responsibility under Article 7(3) of the Statute.²⁹⁹
     2. Kvocka was not the deputy commander of the Omarska camp

     (a) Kvocka’s position in the camp

139. Kvocka contends that the Trial Chamber’s findings are inconsistent and contradictory, because the Trial Chamber used expressions like commander/deputy commander of the camp or the guard service indiscriminately, making the Judgement difficult to understand.³⁰⁰ Kvocka argues that only the head of the Banja Luka Security Service Centre was in charge of assigning duties in the whole Banja Luka Security Service Centre, including the police department in Omarska. He submits that he was assigned by the head of the Banja Luka Security Service Centre to the post of patrol sector leader in the Omarska police department, and therefore could not have had any other status.³⁰¹ In addition, he submits that the Trial Chamber’s conclusion regarding his position in the camp is inconsistent with the Prosecution’s argument that the police was a strict formal and hierarchical organisation with a precisely defined structure. He argues that this argument excluded the assumption that one might de facto perform certain duties without being appointed in accordance with the formal procedure.³⁰² Kvocka contends that the Trial Chamber reached its conclusion based on the assumption that there was an increase in size of the police station and the scope of its tasks. But this assumption was, in his view, contradicted by the evidence presented at trial.³⁰³ Finally, Kvocka points out that the Trial Chamber acknowledged that the evidence did not sufficiently demonstrate a superior-subordinate relationship between him and known perpetrators of the crimes; nor was there credible evidence that he exercised effective control over subordinates who committed crimes. He argues that these findings are contradictory to the finding that he held a de facto position of authority, and that, since he did not have a superior status in comparison with other police officers, he could not have had a de facto position of deputy commander.³⁰⁴

140. The Prosecution responds that Kvocka was found to have participated in the operation of the camp as the functional equivalent of the deputy commander of the guard service, and that his criminal liability did not depend on any formal position .³⁰⁵ The Prosecution argues that the Trial Chamber found that Kvocka was responsible for the crimes on the basis of the significance of his contribution to the system of mistreatment. His criminal liability exists independently of any finding that he was liable as a superior under Article 7(3) of the Statute for crimes committed within the camp.³⁰⁶ In the Prosecution’s view, the Trial Chamber found that there was inconclusive evidence to demonstrate “effective control” over the guards because the guard service was disorganized and acted without accountability, and that it was not fully established which crimes were committed by which of Kvocka’s subordinates during the time that he was working in the camp. The Prosecution submits that these findings were inconsequential to the Trial Chamber’s conclusion that Kvocka exercised influence and authority in the camp.³⁰⁷

141. Kvocka in reply points out that the Trial Chamber’s findings were inconsistent with the “Rules on the operational methods of the Public Security Service”.³⁰⁸ He argues that, according to these Rules, Simo Drljaca, who was the head of the Prijedor Public Security Station, was the only person responsible for the “extraordinary security”, and, as such, for the operation and the security of the Omarska camp. In this function, Simo Drljaca was assisted by Dusan Jankovic, but neither by Zeljko Meakic, nor, consequently, by Kvocka as Zeljko Meakic’s subordinate.³⁰⁹

142. The Appeals Chamber recalls that the Trial Chamber found Kvocka guilty notably because he occupied a de facto position of authority. The Trial Chamber took care to distinguish between the formal position of a deputy commander and the de facto position of authority and influence occupied by Kvocka.³¹⁰ When the Trial Chamber employed the term “deputy commander” in relation to Kvocka’s position, it did so paraphrasing the Prosecution’s submissions or evidence given by witnesses.³¹¹ Summarizing its own findings, the Trial Chamber described Kvocka’s position as the “functional equivalent” of a deputy commander.³¹² Although Kvocka submitted that authority is linked to a formal position,³¹³ he acknowledged in the same Appeal Brief that authority may not be derived only from a formal position within a hierarchy, but also from professional experience and reputation.³¹⁴ Kvocka himself had explained in his interview with the Prosecution that it was quite common in the former Yugoslav police force to take over certain functions temporarily, without an official appointment.³¹⁵

143. With regard to the organizational changes in the Omarska police station in April 1992, the Trial Chamber could rely on Kvocka’s own statement in his interview with the Prosecution:

     I'll try to explain that. Okay, so after Meakic replaced Bujic, there was a programme or a plan of operation of the police station under war conditions. And again, the Omarska section, again became a police station. And a certain number of reserve policemen was included in its operation. There were civilians, so there were civilians who had military war assignments in the police. So […] when Zelijko became the commander we can now say again of the police station in Omarska, the chief of the public security station in Prijedor was Simo Drljaca.³¹⁶

     This statement is consistent with the uncontested finding of the Trial Chamber that a large number of reserve policemen were called into service at the Omarska police station department at that time.³¹⁷ Kvocka has failed to identify the evidence which, he asserts, is contrary to the Trial Chamber’s finding that the structure of the police station changed in April 1992.

144. The Trial Chamber’s finding that there was not sufficient evidence demonstrating a superior-subordinate relationship between Kvocka and known perpetrators of crimes is not inconsistent with its finding that Kvocka occupied a position of authority and influence in the camp. First, the Trial Chamber noted that it had heard evidence that the guard service was disorganized and acted without accountability. It is therefore doubtful if Kvocka exercised effective control over the guards. Second, in the view of the Trial Chamber, the Prosecution had not fully established which crimes were committed by which of Kvocka’s subordinates. These circumstances excluded any finding that Kvocka incurred responsibility under Article 7(3) of the Statute. Not every position of authority and influence necessarily leads to superior responsibility under Article 7(3) of the Statute; a reasonable trier of fact could still come to the conclusion that Kvocka was responsible pursuant to Article 7(1) of the Statute for his participation in a joint criminal enterprise.

145. The Trial Chamber was not conducting research into the formal organization of the police force in the Prijedor area in 1992, but had to determine Kvocka’s responsibility for the crimes committed in the Omarska camp. The basis of this responsibility is not Kvocka’s formal position within the police force, but his factual participation in the operation of the camp. The Appeals Chamber, therefore, finds Kvocka’s arguments relying on the formal organization of the police force to be misconceived.

     (b) Kvocka was not Meakic’s deputy

146. Kvocka challenges the Trial Chamber’s finding that he was de facto or de jure the deputy commander of the Omarska police station department.³¹⁸ He submits that there was no evidence showing that he had any influence in the Omarska police station department or performed any task that was equivalent to the duty of a deputy commander in the department.³¹⁹ He points out that the tasks which he performed in the camp, such as transmitting orders, were just regular duties of a duty officer.³²⁰ He submits that he did not replace Meakic in his absence, as many witnesses testified that Meakic was almost always in the camp.³²¹ Finally, he advances the argument that since he ate the same food as the detainees, he was not superior to other guards.³²²

147. The Prosecution replies that Kvocka did not dispute that, when Zeljko Meakic was absent, he was de facto in charge. When Meakic was present, the Trial Chamber found that Kvocka was the de facto deputy commander who passed on instructions from Meakic to the guards.³²³ The Prosecution argues that the fact that Kvocka ate the same food as the detainees is irrelevant to his position at the camp, as it was a matter of choice, since Kvocka admitted that officials at the camp were allowed to bring food from home.³²⁴

148. The Trial Chamber based its finding that Kvocka participated in the operation of the camp as the functional equivalent of a deputy commander on the fact that Kvocka transmitted Zeljko Meakic’s orders to subordinates, and that he replaced Zeljko Meakic during his absence.³²⁵ Kvocka admitted that he transmitted orders, and argued that this was part of his tasks as a duty officer. For the finding that Kvocka replaced Zeljko Meakic during his absence, the Trial Chamber could rely on Kvocka’s own testimony:

     That's what he was trying to achieve when he was absent, that is, in his absence, that there should be one of us on duty on the shift who would have some kind of police experience and knowledge which he would use to prevent such things. And you heard from your own witnesses that Zeljko was there all the time, that he was, that he was – he would sleep there as well; however, that from time to time, he would absent himself from the camp. During those periods of time, he wanted me to be there and to establish a shift like that there, because he trusted me. He believed that I would inform him of everything, that I would also intervene in cases of trouble, if I see that.³²⁶

     The arrangement, that Kvocka should be in the camp when Zeljko Meakic was absent, was modelled after a similar arrangement that existed for the Omarska police station department:

     I just have to say that with respect to the agreement between Zeljko, Ljuban and myself, and mentioning Ljuban, he was, there was another war station, police station, established in the village of Lamovita and then he went there. So according to this agreement, that one of us should always be present in the police station, I was there one night.³²⁷

     This is not inconsistent with the testimony of Witness F and Witness J, on which Kvocka heavily relies. Although both witnesses stated that Meakic was “always” in the camp, they were not in a position to observe Meakic permanently. Their testimony does not exclude the possibility that Meakic left the camp “from time to time”, as Kvocka recounted. Moreover, the Appeals Chamber notes that both witnesses agreed that Kvocka acted as the deputy commander of the camp, regardless of Meakic’s presence.³²⁸ Even if Zeljko Meakic spent a lot of time in the camp, Kvocka acknowledged that there were occasions when Meakic left the camp. A reasonable trier of fact could conclude from Kvocka’s statements that he acted as Zeljko Meakic’s deputy on these occasions. Zeljko Meakic obviously trusted Kvocka more than any other guard in the camp; he relied on Kvocka for information and was also confident that Kvocka would intervene in cases of trouble.

     3. The evidence did not support the Trial Chamber’s findings

149. Kvocka submits that the evidence presented to the Trial Chamber neither proved beyond reasonable doubt that he acted as the functional equivalent of the deputy commander of the guard service, nor proved beyond reasonable doubt that he had some degree of authority over the guards. The Trial Chamber, he argues, therefore erred in finding that he occupied a position of authority and influence within the camp.³²⁹

150. The Trial Chamber based its finding on Kvocka’s position in the camp on the evidence of a number of witnesses, namely, Mirsad Alisic, Sifeta Susic, Azedin Oklopcic and Witnesses A, AJ and AI.³³⁰ As supporting evidence, the Trial Chamber referred to the testimony of Nusret Sivac, Kerim Mesanovic and WitnessJ, who had stated that they had seen Kvocka giving orders to guards on several occasions.³³¹

     (a) Witness J

151. Kvocka argues that Witness J arrived at Omarska on 13 or 14 June and was in the camp for only just five or six days before Kvocka left. Moreover, he submits that this witness had a “strong motive to file a false charge” against him because of a previous personal conflict. Kvocka asserts that she had had a relationship with his uncle, of which Kvocka strongly disapproved.³³² He further argues that Witness J abused the protective measures granted to her by the Trial Chamber, because she subsequently appeared several times in the media and gave accounts about her experiences in the Omarska camp.³³³

152. The Appeals Chamber considers that a reasonable trier of fact could rely on Witness J’s testimony. She was familiar with the structure of the public security service and gave a detailed account of it.³³⁴ She stated that the administration of the Omarska camp was similar to the structure she knew from the public security service.³³⁵ In her view, Kvocka was the deputy commander of the Omarska camp. She gave several reasons supporting this conclusion: Kvocka was referred to as the deputy commander by detainees and guards; for example, she had heard guards saying ”I have to ask the deputy, I'm going to see the deputy, I'm going to see Kvocka.”³³⁶ On other occasions, she heard Kvocka issuing orders to guards, and she observed that the guards treated Kvocka with respect, like a superior. She saw Kvocka going round the camp, positioning the guards. She had never heard anyone refuse to act upon Kvocka’s word. Kvocka shared an office with Zeljko Meakic, and when Zeljko Meakic was off duty, Kvocka would take his place.³³⁷

153. The Appeals Chamber finds that Kvocka did not advance relevant objections to Witness J’s testimony. She admitted freely that she was not certain about the exact dates of her observations,³³⁸ but such uncertainty is understandable when a witness gives evidence about events after several years. The alleged personal motive for a false accusation remains vague and is not supported by any evidence. Even if such a motive existed, the mere existence of a personal conflict between a witness and an accused does not render the witness’ evidence per se unreliable. The fact that the witness, after testifying before the Trial Chamber, chose to appear in public, does not have an impact on the reliability of her testimony; Kvocka does not claim that she applied for protective measures under false pretences. The Appeals Chamber, therefore, finds that Kvocka’s arguments with regard to Witness J are without merit.

     (b) Witness Azedin Oklopcic

154. Kvocka submits that the testimony of Azedin Oklopcic, that Kvocka and Meakic had a particular status because they took 24-hour shifts, whereas other guards and shift leaders took 12-hour shifts, should not have been accepted. He argues that this statement was not confirmed by any other witness.³³⁹ The Prosecution replies that although the witness was incorrect on this detail of Kvocka’s and Meakic’s shifts, the Trial Chamber relied on other sufficiently compelling evidence to find that Kvocka occupied a position of influence and authority.³⁴⁰

155. The Appeals Chamber acknowledges that Azedin Oklopcic stated that Zeljko Meakic and Kvocka took turns every 24 hours, as opposed to the shift leaders and the guards.³⁴¹ However, even if this statement is incorrect, this would not raise any doubts as to the reliability of Azedin Oklopcic’s evidence. Kvocka had stated that he had no fixed schedule, and that his working times in the camp were irregular.³⁴² It was, therefore, easy for an observer to be mistaken about Kvocka’s working schedule. Moreover, Azedin Oklopcic did not rely on this particular observation for his conclusion that Kvocka was the deputy commander of the camp. He stated that he believed that Kvocka was the deputy commander because the guards and shift leaders treated him respectfully. He observed that the guard leaders would go to see him and Zeljko Meakic for consultations, and that he distributed food and cigarettes among the guards. Finally, Azedin Oklopcic remarked that the shift changeover would always take place in the presence of the commander or the deputy commander, and that he had seen Kvocka on several of these occasions.³⁴³ The reasoning that Kvocka distributed food and cigarettes among the guards may not be conclusive, if assessed on its own. However, viewed in their entirety, Azedin Oklopcic’s reasons for his assumption that Kvocka held the position of deputy commander are not unreasonable. The Appeals Chamber finds that the Trial Chamber could reasonably rely on the evidence given by Azedin Oklopcic to support its findings.

     (c) Witness AJ

156. Kvocka argues that the Trial Chamber erred in accepting the testimony of Witness AJ that Kvocka was a deputy commander of the camp, because he approved the change of the witness’s location. He submits that this conclusion is erroneous, because any guard had the authority to assign a detainee to a specific location, as shown by the testimony of Witness AN and Nusret Sivac.³⁴⁴ The Prosecution responds that Witness AJ testified that he was informed by a guard that Kvocka was in a position to decide if he could be detained in another location, which was not inconsistent with Witness AN’s evidence that guards could send detainees to various places of detention after interrogation.³⁴⁵

157. The relevant part of Witness AJ’s testimony reads as follows:

     I got this from Miroslav Kvocka, because he [an unknown guard] said, "Interrogation and then to the pista." And I said, "Well, I'd like to go where I was before." And he said, "You have to ask Kvocka about that." Then it happened by chance that Kvocka happened to be there, and I asked him, and he gave me a piece of paper. He wrote -- what he wrote on it, I don't remember. But I gave this piece of paper to the man over there on guard. Who it was, I can't really remember now, but I gave him the piece of paper, and then I went to Mujo's rooms.³⁴⁶

     From this statement it becomes clear that the guard, who had been asked by Witness AJ first, did not have the competence to allow Witness AJ to change his place, whereas Kvocka did. The witness called Kvocka explicitly a commander, even if he was unsure about the exact command structure in the camp.³⁴⁷ The Appeals Chamber finds that a reasonable Trial Chamber could infer from this testimony that Kvocka had more authority than a simple guard.

     (d) Witness AI

158. Kvocka argues that Witness AI’s testimony is unreliable. He submits that Witness AI testified that, between 8:00 and 9:00 p.m. on 30 May 1992, Kvocka introduced himself as the person responsible for the detainees, and told the detainees that everything would be fine; they would be questioned and then returned home. Kvocka argues that this testimony is contrary to the evidence given by Branko and Milenko Rosic that he left the camp after a shooting incident, which occurred in the afternoon on 30 May, and did not come back on the same day.³⁴⁸ He adds that, after the shocking experience of the shooting incident, he was mentally incapable of performing his duties and went on sick leave the next day.³⁴⁹ He submits that the Trial Chamber also concluded that staff and detainees of the camp believed in the first ten to fifteen days that the detainees would be questioned and then returned home, and that therefore his address to the detainees did not show that he had a superior position.³⁵⁰ The Prosecution responds that the evidence of witnesses Branko and Milenko Rosic was irrelevant to the credibility of Witness AI. It submits that the testimony of these two witnesses was not inconsistent with Witness AI’s evidence since the exact time of the incident was unclear.³⁵¹ Kvocka replies that the testimony of Witness AI did not prove anything due to three reasons. First, the witness claimed that Kvocka was normally dressed when addressing the detainees between 8:00 and 9:00 p.m., although he had helped in the transportation of heavily injured people in the ambulance. Second, the witness did not give information about the event of the “washing of the pista” (to remove the bloodstains) on 30 May, which was an extraordinary situation. Third, witnesses Milenko and Branko Rosic confirmed that he left the camp after giving help in transporting the injured.³⁵²

159. The Appeals Chamber finds that the testimony of Witness AI is not inconsistent with the testimony of Branko and Milenko Rosic. None of the witnesses could give the exact time of his observations. Even if it is accepted that the shooting incident took place before Kvocka’s address to the detainees, this would not raise doubts about the reliability of Witness AI’s account. Branko Rosic mentioned that Kvocka left the camp after the shooting incident, but his testimony does not exclude the possibility that Kvocka returned later in the evening. Milenko Rosic himself left the camp after the incident and was therefore not in a position to testify about Kvocka’s eventual return to the camp. Kvocka’s intervention to stop the shooting was no doubt stressful for him. However, the witnesses agreed that Kvocka reacted adequately and courageously, and that he organized help for the victims of this incident efficiently.³⁵³ It is highly improbable that the consequences of this incident should have prevented Kvocka from addressing a few reassuring remarks to the detainees later in the evening. For Witness AI, it was clear from Kvocka’s words that Kvocka held a position of authority in the camp.³⁵⁴ The Trial Chamber could rely on this evidence to support its findings about Kvocka’s position in the camp .

     (e) Witness Nusret Sivac

160. Kvocka contends that the Trial Chamber misinterpreted Nusret Sivac’s testimony when it stated that Kvocka had intervened on behalf of this witness. Kvocka submits that Nusret Sivac’s testimony is not reliable for three reasons: (i) he could have seen Kvocka only once; (ii) his description of Kvocka’s uniform was wrong; and ( iii) he had stated that he had seen Kvocka and Prcac together in the camp, which was impossible.³⁵⁵ In his Reply Brief, he added that the Trial Chamber erred in relying on Nusret Sivac’s testimony, because the witness arrived in the camp on 24 June 1992, after Kvocka had already left the camp.³⁵⁶ The Prosecution submits that the Trial Chamber was entitled, while interpreting Sivac’s evidence, to conclude that Kvocka had influence over the guards as he intervened when they arrested the wrong person. The Prosecution argues that the allegation that the witness was lying when he said that Kvocka was seen with Prcac sometime in July must be rejected as Kvocka stated that he might have returned to the camp sometime in the second week of July.³⁵⁷

161. Nusret Sivac stated:

     While they were beating us, our faces were facing the wall, and I don't know how long it took. I remember the moment when I heard Kvocka's voice. He shouted all of a sudden, "Who brought Nusret Sivac to the camp?" At that moment, the guards stopped beating us and we turned around, and Kvocka came to Tomislav Stojakovic and Brane Bolta, who had taken us from Prijedor, and he told them, "Why have you brought Mr. Sivac here? We need his sister, Nusreta Sivac, who used to work as a judge in the court in Prijedor."

     Q. And after he said that, what happened?

     A. Then Tomo Stojakvic who had brought us there asked him, "What am I going to do with him?" He said, "Wait a second. I'm going to see Mico, the boss. I'll ask him what to do."³⁵⁸

     The conclusion drawn by the Trial Chamber, that Kvocka interrupted the beating, sought specific instructions from the investigator Ranko Mijic and finally ordered that Nusret Sivac should be brought back to Prijedor, is justified. The alleged errors in Nusret Sivac’s testimony are minor and do not affect the core of the testimony. Nusret Sivac was arrested twice, on 10 June and 23 June.³⁵⁹ After the first arrest, he was released immediately because of Kvocka’s intervention. Kvocka’s argument, that the Trial Chamber should have disregarded Nusret Sivac’s evidence because he was arrested on 24 June, is therefore misconceived. The Appeals Chamber finds that Kvocka does not explain why no reasonable trier of fact could have come to the Trial Chamber’s finding.

     (f) Witness Mirsad Alisic

162. Kvocka argues that Mirsad Alisic’s credibility is in question as his testimony about the shooting incident, which happened on 30 May 1992, was contrary to the evidence given by Branko Rosic, Milenko Rosic, Miroslav Nisic, Ljuban Andic and Kvocka himself.³⁶⁰ Kvocka argues that Mirsad Alisic claimed that he had seen Kvocka addressing the detainees on 31 May, which is impossible, as Kvocka had left the camp after the incident of 30 May. In addition, Kvocka submits that Mirsad Alisic gave a false account about the murder of Mehmedalija Nasic. He points out that Alisic’s testimony about the death of Nasic was inconsistent with the testimony of Jasmir Okic, Dragan Popovic and himself.³⁶¹ He further submits that Alisic’s testimony was unreliable because of contradictions in some details, such as the colour of Kvocka’s uniform. Kvocka finally argues that Mirsad Alisic testified that Kvocka addressed the detainees on the “pista” stating that he was the commander of the camp, which was contrary to the finding that he was the deputy commander of the police station.³⁶²

163. The Prosecution responds that the testimony of Alisic was materially consistent with the Trial Chamber’s findings that Kvocka was the de facto deputy commander in the camp when Meakic was not present.³⁶³ It further submits that the Trial Chamber found that Kvocka was absent from the camp from 2-6 June, which is contrary to Kvocka’s assertion that he was absent on 31 May, and that Kvocka’s testimony showed that Meakic was not at the camp at the material time and that Kvocka had assumed the role of supervisor.³⁶⁴

164. The Appeals Chamber notes that Kvocka does not explain why he considers the testimony of Mirsad Alisic about the incident on 30 May to be unreliable. The witness recounted that, when he arrived in Omarska, a guard opened fire on six detainees. The Trial Chamber found that, on this occasion, Kvocka intervened and stopped the shooting. The Trial Chamber based this finding on Kvocka’s own statement and the testimony of Branko Rosic, Milenko Rosic and Ljuban Andic.³⁶⁵ This finding is not necessarily inconsistent with Mirsad Alisic’s account. The main differences are that Mirsad Alisic omitted Kvocka’s intervention, and that he identified the attacker as a guard named Pedrojevic. Mirsad Alisic was not asked why the shooting stopped; neither was he confronted with the statement of Kvocka about this incident. No other witness identified the attacker.

165. Kvocka’s argument that there are further inconsistencies in Mirsad Alisic’s testimony, such as the colour of Kvocka’s uniform or the existence of reflectors in the camp, is equally without merit. These details do not affect the core of Mirsad Alisic’s testimony, nor does Kvocka demonstrate that they are actually incorrect.

166. The Trial Chamber accepted Mirsad Alisic’s testimony about the murder of a detainee called Nasic.³⁶⁶ Kvocka does not advance specific arguments supporting his argument that Mirsad Alisic gave false testimony about this fact. The Appeals Chamber finds that he seeks merely to substitute his own evaluation of the evidence for that of the Trial Chamber, without demonstrating that it was not open for a reasonable trier of fact to come to the conclusions of the Trial Chamber. The Appeals Chamber finds that it was open for a reasonable trier of fact to rely on the testimony of Mirsad Alisic about Kvocka addressing orders to the detainees. A reasonable trier of fact could also conclude from Mirsad Alisic’s testimony that Kvocka was the camp commander and that Kvocka held a position of authority. Even if the witness used the term “camp commander” and not “deputy commander” or a similar term, it is not to be expected that this witness, not being an expert on the organizational structure of the police, was aware of the correct designation of Kvocka’s position.

     (g) Witness A

167. Kvocka argues that Witness A only assumed that Kvocka held a superior position in the camp. He submits that this witness was brought to the Omarska camp between 17 and 20 June 1992 and the Trial Chamber found that he was absent from the camp from 16 to 20 June and finished working there on 23 June. Since the witness was only in the camp together with Kvocka for about two to three days and saw him two or three times, Kvocka argues that this part of Witness A’s testimony should be rejected. He further points out that the Trial Chamber found another part of the witness’ testimony unreliable.³⁶⁷ The Prosecution replies that the Trial Chamber declined to rely upon a part of Witness A’s evidence because the details of the rape that she gave were confusing and could not be relied upon to establish guilt. The Trial Chamber, however, accepted her testimony that she saw Kvocka in the camp and that he appeared to hold a position of authority. The Prosecution points out that the evidence of Witness A corroborated that of other witnesses to a material extent, and that Witness A was in Omarska for some time from June to August 1992, when she saw Kvocka for two to three days walking around the camp, which is contrary to Kvocka’s claim that Witness A was in the camp for a few days only.³⁶⁸

168. Witness A stated that she had seen Kvocka two or three times in the camp.³⁶⁹ She saw him in the command room or walking about in other parts of the camp. She assumed that he was “some sort of superior”, because the guards addressed him, and the female detainees were told by the guards to address any request to Kvocka or one of the other commanders.³⁷⁰ The Trial Chamber noted that Witness A testified about her rape by Radic, and that the Trial Chamber had “no difficulty believing that this witness suffered a terrible and traumatizing ordeal. However, her testimony was so confused as to the details of the rape that it cannot be relied upon to establish guilt.” ³⁷¹ The Trial Chamber did not doubt the credibility of Witness A, but found her evidence insufficient as the factual basis for a conviction. This did not prevent the Trial Chamber from relying upon other parts of the witness’ testimony, which it found sufficiently clear. Witness A did not merely assume that Kvocka held a position of authority in relation to the guards, but drew this conclusion from her observations of the guards’ behaviour. The Appeals Chamber finds that a reasonable trier of fact could rely on this testimony as corroborating evidence.

     (h) Witnesses Sifeta Susic and Kerim Mesanovic

169. Kvocka argues that Sifeta Susic and Kerim Mesanovic were brought to the camp only after he had left his position there, so they were unable to give evidence about his position in the camp.³⁷² With regard to Kerim Mesanovic, Kvocka adds that this witness did not recognise him in a photo-set procedure.³⁷³ The Prosecution responds that Kvocka did not dispute the salient aspects of Sifeta Susic’s testimony, such as the date of her arrest and transfer to the camp, and his assistance to her in obtaining medication. In addition, the Prosecution argues that the Trial Chamber held that Kvocka was at the camp from “about” 29 May to 23 June 1992, so the relevant conduct on 24 June as testified to by Sifeta Susic and Kerim Mesanovic should not be excluded.³⁷⁴ In the Prosecution’s view, Sifeta Susic’s credibility was not undermined by her understandable mistake about the specific date when she saw Kvocka.³⁷⁵

170. The Trial Chamber found that Kvocka held a position in the camp during the period from about 29 May to 23 June 1992.³⁷⁶ The fact that Kvocka was also seen by several witnesses on 24 June in the camp was, in the view of the Trial Chamber, convincingly explained by the fact that he was obliged to return his brothers-in-law to the camp on this day, and that he visited them once more on a later occasion. The Trial Chamber, therefore, had no doubt that Kvocka’s official duties in the camp ceased on 23 June, and that “the fact that witnesses saw Kvocka in the camp after 24 June 1992 is not sufficient evidence that his duties there continued”.³⁷⁷ In the light of this finding, no reasonable trier of fact could infer from observations made after 23 June anything about Kvocka’s position in the camp before this date. Both Sifeta Susic and Kerim Mesanovic were arrested on 24 June, and it is unlikely that they erred about a date of such significance. The Appeals Chamber, therefore, finds that no reasonable trier of fact could rely on the testimony given by them to establish Kvocka’s position in the camp.

     (i) Defence evidence

171. Kvocka argues that, although the Prosecution had to prove its assertions, he had summoned several Defence witnesses to testify about the facts in question, namely, himself, Milutin Bujic, Dragan Popovic, Nada Markovski, Witness DD/10 and others. Kvocka submits that all these witnesses agreed that he was a simple police officer and held no position of de facto authority in the camp.³⁷⁸ The Prosecution responds that it is insufficient for Kvocka merely to express dissatisfaction that the Trial Chamber chose to accept evidence of Prosecution witnesses over that of Defence witnesses, as the Trial Chamber weighed the evidence carefully and gave reasons for rejecting or accepting the evidence before arriving at its conclusions .³⁷⁹

172. The Appeals Chamber notes that Kvocka gives references only for the testimony of Milutin Bujic, Dragan Popovic and Nada Markovski, and accordingly limits itself to the examination of these pieces of evidence. Milutin Bujic, a retired policeman, was Kvocka’s superior at the Omarska police station, but had nothing to do with the Omarska camp.³⁸⁰ He was therefore unable to provide any information about Kvocka’s position in the camp. Nada Markovski was working as a typist in the camp and never left her office there. When asked who was deputizing for Zeljko Meakic in the camp, she answered: “I don't know. That – I didn't pay attention to things like that. My job was to do the typing.”³⁸¹ Both witnesses’ testimony is, therefore, immaterial to the Trial Chamber’s findings.

173. Dragan Popovic was a guard in Omarska. Although he said that he had not seen Kvocka very often because he belonged to a different shift, he stated explicitly that Kvocka only had the position of an ordinary guard and could not issue any orders to other guards.³⁸² In fact, Dragan Popovic maintained that the only person who had any authority in the camp was Zeljko Meakic, and that there were not even shift leaders.³⁸³ Any problem in the camp had to be communicated to Zeljko Meakic.³⁸⁴ In the view of the Appeals Chamber, it seems improbable that during the absence of Zeljko Meakic nobody was there to coordinate the guards. In particular, that improbability is inconsistent with Kvocka’s own testimony who acknowledged that Zeljko Meakic wanted him to be present during his absence so that Kvocka could keep Meakic informed and deal with any problems.

174. In summary, even disregarding the evidence of Sifeta Susic and Kerim Mesanovic, there was ample evidence before the Trial Chamber supporting the conclusion that Kvocka held at least a de facto position of authority in the camp. The only contrary evidence is the testimony of Dragan Popovic, which carries no great evidentiary weight and is inconsistent with the rest of the evidence on the trial record. The Appeals Chamber finds that Kvocka has not demonstrated that no reasonable trier of fact could arrive at the conclusion that he held a de facto position of authority in the camp.
     4. Kvocka was not charged as the de facto deputy commander

175. Kvocka submits that, since the Trial Chamber accepted his argument that Zeljko Meakic was the chief of security at the camp, it should have rejected the Prosecution’s assertion that Meakic, Kvocka and Prcac were the commander and deputy commanders of the camp.³⁸⁵ He argues that since the Indictment named him commander or deputy commander of the camp, the Prosecution had to prove beyond a reasonable doubt that he held such a position.³⁸⁶ Instead the Trial Chamber found that Kvocka held a de facto position of authority and influence in the Omarska police station after Meakic was appointed commander of the station. Kvocka submits that he was not charged with having such a position in the Indictment.³⁸⁷

176. The Prosecution replies that Kvocka was on notice that, in relation to Article 7(1) of the Statute, the nature of his function and duties were in issue at trial and that his criminal liability would depend on the Trial Chamber’s findings made in this respect. In the Prosecution’s view, it was open to the Trial Chamber to find that Kvocka’s functions and duties were different from those alleged in the Indictment and to determine his criminal liability accordingly.³⁸⁸

177. The Appeals Chamber notes that Kvocka was charged in the Indictment with liability under Article 7(1) of the Statute for the crimes committed in the Omarska camp. Kvocka’s formal position in the police hierarchy as commander or deputy commander is immaterial to his responsibility pursuant to Article 7(1): a person does not need to hold a formal position in a hierarchy to incur liability under Article 7 (1). The allegation that Kvocka was commander or deputy commander of the camp was not a material fact in relation to his liability under Article 7(1), so that his argument that a material fact in the Indictment had not been proved is without merit. It was for the same reason unnecessary for the Prosecution to plead the fact that Kvocka held a de facto position of authority and influence in the camp. The Appeals Chamber further recalls the finding of the Kunarac Appeal Judgement that minor discrepancies between the facts in the Trial Judgement and those in the Indictment do not imply that the events charged in the Indictment did not occur.³⁸⁹
     C. Kvocka’s responsibility under the joint criminal enterprise theory (ground of appeal 7)

178. The Trial Chamber was satisfied beyond reasonable doubt that, through his participation, Kvocka intentionally furthered the criminal system in place in Omarska camp and is therefore responsible for the crimes committed as part of the joint criminal enterprise.³⁹⁰ The Trial Chamber thus found Kvocka guilty as a co-perpetrator of the following crimes as part of the joint criminal enterprise in Omarska camp pursuant to Article 7(1) of the Statute : persecution (count 1), murder (count 5) and torture (count 9). In this ground of appeal, Kvocka submits that the Trial Chamber erred in finding that the requisite actus reus and mens rea to establish his responsibility as co-perpetrator in a joint criminal enterprise had been satisfied. He requests the Appeals Chamber to set aside the Trial Chamber’s finding on this point.

179. The Appeals Chamber finds that Kvocka’s arguments in support of this ground need to be somewhat restructured in order to be more clearly assessed. To this end, the Appeals Chamber decided not to follow the order in which Kvocka presented his arguments in his Appeal Brief but rather favoured a methodical approach, first, to the issues relating to the actus reus, and then to those relating to the mens rea.

180. The Appeals Chamber proposes to rule at the outset on one of the arguments put forward by Kvocka in this ground of appeal. In his Brief in Reply, Kvocka submits that the present case does not involve concentration camps, and that consequently, his responsibility must fall under the first category of joint criminal enterprise.³⁹¹ He also argues that the Prosecution did not prove beyond reasonable doubt the existence of such an enterprise, nor the existence of a common plan shared by him and others.³⁹²

181. A close analysis of the Trial Judgement shows that the Trial Chamber contemplated Kvocka’s responsibility under the second category of joint criminal enterprise:

     Although the first two categories enunciated by Tadic are quite similar, and all three are applicable to this case to some degree, the second category, which embraces the post war “concentration camp” cases, best resonates with the facts of this case and is the one upon which the Trial Chamber will focus most of its attention. The Trial Chamber will examine and elaborate upon the standards to be applied in assessing criminal liability of participants in a detention facility which operates as a joint criminal enterprise.³⁹³

182. The Appeals Chamber wishes to point out that, although commonly referred to as the “category known as concentration camps”, the second category of joint criminal enterprise, known as systemic, covers all cases relating to an organised system with a common criminal purpose perpetrated against the detainees. This concept of criminal responsibility has been shaped by the case-law derived from concentration camp cases from the Second World War, but reference to the concentration camps is circumstantial and in no way limits the application of this mode of responsibility to those detention camps similar to concentration camps.³⁹⁴

183. The Trial Chamber found that Omarska camp was a joint criminal enterprise the purpose of which was to persecute and subjugate non-Serb detainees.³⁹⁵ Kvocka did not succeed in demonstrating how the Trial Chamber erred in reaching this conclusion. The Appeals Chamber upholds the Trial Chamber’s findings in this regard.
     1. Kvocka’s work in the Omarska camp did not meet the standard for that of a co-perpetrator

184. The Trial Chamber found that Kvocka had actively contributed to the everyday functioning and maintenance of the camp and, through his participation, enabled the camp to continue unabated its insidious policies and practices,³⁹⁶ and is thus criminally responsible for the crimes committed as part of the joint criminal enterprise. More specifically, Kvocka was found guilty as a co-perpetrator in the joint criminal enterprise in Omarska camp “[d]ue to the high position Kvocka held in the camp, the authority and influence he had over the guard service in the camp, and his very limited attempts to prevent crimes or alleviate the suffering of detainees, as well as the considerable role he played in maintaining the functioning of the camp despite knowledge that it was a criminal endeavour.”³⁹⁷

185. Kvocka claims that he did not participate in carrying out the joint criminal enterprise and, at any rate, that his participation in the functioning of Omarska camp was not sufficiently significant to convict him as a co-perpetrator.

     (a) The objective element of a joint criminal enterprise

186. Kvocka submits that, in order to establish participation as a co-perpetrator in a joint criminal enterprise, the objective and subjective elements must be established.³⁹⁸ He submits that the objective element is the co-perpetrator’s “action”, and that, according to the Tribunal’s jurisprudence, his contribution to the criminal enterprise must be “direct and significant.”³⁹⁹ The Prosecution recalls that the Trial Chamber did consider this argument in its Judgement.⁴⁰⁰ In reply, Kvocka repeats that co-perpetration requires proof of the existence of acts of commission as the objective element.⁴⁰¹

187. The Trial Chamber held in paragraph 309 of the Trial Judgement that to find an individual who works in a detention camp where conditions are abusive liable as a participant in a joint criminal enterprise, “the participation in the enterprise must be significant”. The level of contribution required to amount to participation in a joint criminal enterprise has already been addressed by the Appeals Chamber in the section addressing the legal questions related to joint criminal enterprise common to the four Appellants.⁴⁰² The Appeals Chamber has stated that the accused’s participation in carrying out the joint criminal enterprise is likely to engage his criminal responsibility as a co-perpetrator, without it being necessary in general to prove the substantial or significant nature of his contribution: it is sufficient for the accused to have committed an act or an omission which contributes to the common criminal purpose .⁴⁰³ Contrary to the holding of the Trial Chamber, the Tribunal’s case-law does not require participation as co-perpetrator in a joint criminal enterprise to have been significant, unless otherwise stated.⁴⁰⁴ A fortiori, contrary to Kvocka’s submissions, such participation need not be “direct or significant”. Kvocka’s arguments are thus rejected on this point.

188. The Appeals Chamber recalls however that the significance and scope of the material participation of an individual in a joint criminal enterprise may be relevant in determining whether that individual had the requisite mens rea.⁴⁰⁵ The extent of the material participation is also a decisive factor when assessing the responsibility of an individual for aiding and abetting the crimes committed by the plurality of persons involved in the joint criminal enterprise. As stated in the Tribunal’s case-law, the aider and abettor must make a substantial contribution to the crime in order to be held responsible.⁴⁰⁶

     (b) Kvocka’s contribution

189. Kvocka argues that he did not have any important position in the camp, having no authority or influence over other guards but intervening as a mere police officer.⁴⁰⁷ He submits that the Trial Chamber erred in finding that he exercised authority in Omarska when Zeljko Meakic was not in the camp.⁴⁰⁸ He underlines that the Trial Chamber did not address the fact that no one replaced him during his leave and after he was finally dismissed.⁴⁰⁹ Kvocka concludes that he was an insignificant link in the camp system.⁴¹⁰

190. The Prosecution responds that a position of authority per se is not a legal requirement for liability as a participant in a joint criminal enterprise, but one of the relevant factors to be considered in the process of determining the liability of an accused as a co-perpetrator.⁴¹¹ It points to the Trial Chamber’s conclusion that mid- or low-level perpetrators could be held responsible as co-perpetrators of, or aiders and abettors to, a joint criminal enterprise, provided they made a substantial contribution to the enterprise’s functioning or endeavours.⁴¹² It adds that the Trial Chamber held that Kvocka’s contribution to the functioning of the camp was significant, and that his willingness to continue holding a position of authority and influence demonstrated that he was not a passive or reluctant participant.⁴¹³ In its view, Kvocka’s significant contribution encompassed active and positive acts, as well as omissions and negative conduct.⁴¹⁴ It also argues that, according to the Tadic Appeal Judgement, it is sufficient to find him liable as a co-perpetrator if the participant “performSsC acts that in some way are directed to the furthering of the common plan or purpose”.⁴¹⁵ It contends that the legal standard applied in the Trial Judgement is consistent with these principles.⁴¹⁶

191. Kvocka submits in reply that his duties were strictly limited to providing security in the camp according to the plan established by Simo Drljaca.⁴¹⁷ He argues that the Prosecution did not prove beyond reasonable doubt the allegation that his daily tasks at the camp amounted to a contribution to the commission of crimes.⁴¹⁸

192. With regard to Kvocka’s allegations concerning his position in the Omarska camp, the Appeals Chamber recalls that it has already concluded that a reasonable trier of fact could consider that Kvocka held a de facto position of authority and influence in the camp.⁴¹⁹ As set out previously, the Appeals Chamber considers also that Kvocka acted as Zeljko Meakic’s deputy in his absence.⁴²⁰ Although a de jure or de facto position of authority is not a material condition required by law under the theory of joint criminal enterprise,⁴²¹ the Appeals Chamber stresses that it is a relevant factor in determining the scope of the accused’s participation in the common purpose.

193. The Appeals Chamber wishes to emphasize that whether the criminal purpose could have been achieved without the participation of the accused has little relevance if it has been established that, to a certain extent, he participated in implementing and upholding the system. ⁴²² The argument that Kvocka’s contribution should be considered less significant because it was unnecessary to replace him when he was absent and after he had left is thus without merit.

194. The Appeals Chamber will now consider whether it was reasonable for the Trial Chamber to conclude that Kvocka’s participation in the functioning of the camp had furthered the criminal purpose, so as to entail his criminal responsibility as a co-perpetrator in the joint criminal enterprise.

195. The Appeals Chamber observes that the Trial Chamber found that Kvocka had served in the camp from about 29 May 1992 to 23 June 1992 and that he was absent from 2 to 6 June 1992 and from 16 to 19 June 1992;⁴²³ that he held a high-ranking position in the camp and had some degree of authority over the guards;⁴²⁴ that he had sufficient influence to prevent or halt some of the abuses but that he made use of that influence only very rarely;⁴²⁵ that he carried out his tasks diligently, participating actively in the running of the camp;⁴²⁶ that through his own participation, in the eyes of the other participants, he endorsed what was happening in the camp.⁴²⁷ Kvocka did not show how the Trial Chamber’s findings were unreasonable.

196. It is clear that, through his work in the camp, Kvocka contributed to the daily operation and maintenance of the camp and, in doing so, allowed the system of ill -treatment to perpetuate itself. The Appeals Chamber holds that the Trial Chamber did not make an error of fact when it found that Kvocka allowed the perpetuation of the system of ill-treatment, thereby furthering the common criminal purpose. Consequently, the Appeals Chamber rejects this sub-ground of appeal.
     2. Kvocka’s stay in the Omarska camp was not knowing, willing, or continuous

197. The Trial Chamber found that Kvocka participated knowingly, willingly and continuously in the criminal events at Omarska camp,⁴²⁸ in short that he was aware of the common system of ill-treatment and that he had the intent to discriminate against and persecute the non-Serb detainees.⁴²⁹ Kvocka contends on the contrary that when he was working in Omarska camp he was not aware of the common criminal purpose nor did he intend to further the system of ill-treatment. In support of this sub-ground of appeal Kvocka submits that two errors were allegedly committed by the Trial Chamber: (i) the finding that he was aware of the common criminal purpose of the Omarska camp, and (ii) the finding that he had the requisite intent to further the joint criminal enterprise.

     (a) Kvocka’s awareness of the criminal purpose of the camp

198. On several occasions, the Appeals Chamber stated that the systemic form of joint criminal enterprise requires that the accused had personal knowledge of the criminal nature of the system.⁴³⁰ Kvocka does not question that requirement⁴³¹ but submits that the Trial Chamber erred in finding that he had personal knowledge of the common criminal purpose implemented in Omarska camp.

199. Kvocka submits that, because of his actual position in the system and his short stay in the camp with two considerable interruptions, he was not aware of the final goal of the camp. He concedes that the conditions of detention were bad but submits that he deeply believed that this was due to the very extraordinary circumstances and that he had no knowledge of the prohibited purpose of the camp.⁴³² He submits that he was absent from the camp in the period from 16 to 19 June 1992 and that, at this time, he did not know what was going on in the camp.⁴³³

200. The Prosecution responds that Kvocka’s knowledge of the nature of the joint criminal enterprise was considered at length by the Trial Chamber in the Trial Judgement and its findings have not been shown to be unreasonable.⁴³⁴

201. When discussing the applicable criteria in determining the accused’s awareness of the criminal nature of the system, the Trial Chamber emphazised that:

     Knowledge of the joint criminal enterprise can be inferred from such indicia as the position held by the accused, the amount of time spent in the camp, the function he performs, his movement throughout the camp, and any contact he has with detainees, staff personnel, or outsiders visiting the camp. Knowledge of the abuses could also be gained through ordinary senses.⁴³⁵

202. Hence, the Trial Chamber observed that Kvocka held a de facto position of authority in the camp,⁴³⁶ a finding upheld by the Appeals Chamber.⁴³⁷ It then established that, by his own admission, Kvocka was informed of the harshness of the living conditions of the non-Serb detainees and the serious crimes regularly committed against them⁴³⁸ and that, in spite of this, he continued to work in the camp for approximately seventeen days, “where he performed the tasks required of him skilfully, efficiently, and without complaint”.⁴³⁹ The Trial Chamber concluded from this that Kvocka was aware of the context of persecution and ethnic violence prevalent in the camp and the persecutory nature of the crimes committed against the non-Serbs detained in the camp.⁴⁴⁰

203. The Appeals Chamber considers that, even though Kvocka may have participated in the joint criminal enterprise, without being aware at the outset of its criminal nature, the facts of the case prove that he could not have failed to become aware of it later on. The harsh detention conditions, the continuous nature of the beatings of the non-Serb detainees and the widespread nature of the system of ill-treatment could not go unnoticed by someone working in the camp for more than a few hours, and in particular by someone in a position of authority such as that held by Kvocka. Kvocka’s submission that he was not aware of the criminal nature of the system in place at the camp is bound to fail.

204. The Appeals Chamber is not convinced by Kvocka’s arguments that the Omarska camp was initially intended to be used as an interrogation centre for a short duration following the armed conflicts in Kozarac from 24 to 26 May 1992 and in Prijedor on 30 May 1992,⁴⁴¹ that his own role in the camp was limited to that of a duty officer,⁴⁴² and that he was psychologically unstable and absent from the camp from 2 to 6 June 1992 and failed to perform his duties after having witnessed an incident in which a person opened fire against a group of detainees on 30 May 1992.⁴⁴³ Kvocka does not establish how these circumstances would render the Trial Chamber’s finding with regard to his knowledge of the criminal purpose of the camp unreasonable. The same applies to Kvocka’s argument that the physical abuse of detainees during interrogation, about which he heard, was common practice in socialist countries and that their authors were his superiors.⁴⁴⁴

205. Since Kvocka has in no way demonstrated how the Trial Chamber’s finding that he was fully aware of the system of ill-treatment in Omarska camp which aimed at persecuting and subjugating the non-Serb detainees was unreasonable, the Appeals Chamber rejects this sub-ground of appeal.

206. The Appeals Chamber will now examine the second sub-ground of appeal relating to Kvocka’s intent.

     (b) Kvocka’s intent to participate in the joint criminal enterprise

207. The Appeals Chamber notes that Kvocka has not clearly identified the alleged errors relating to this ground of appeal. The Appeals Chamber could have dismissed the ground on this basis alone but has nevertheless decided, in the interests of justice, to consider the merits of these arguments when, on its own, it was able to identify with certainty the alleged error.

     (i) Absence of agreement with the perpetrators of the crimes

208. Kvocka submits that the subjective element for co-perpetration requires that a person who participates in an offence must be aware of other participants’ actions, in other words, that his act is connected with other persons’ actions. He submits that this subjective connection emerges in two or more persons’ agreement regarding joint criminal enterprise, which may appear before undertaking the action, immediately before approaching the action, or even after the commencement of the action.⁴⁴⁵ Kvocka maintains that the proof of an agreement, even implicit, is necessary⁴⁴⁶ and submits that the Prosecution did not prove beyond reasonable doubt his agreement with other members of the criminal enterprise.⁴⁴⁷ This issue is not addressed in the response of the Prosecution.

209. The Appeals Chamber recalls that the common purpose need not be previously arranged or formulated; it may materialise extemporaneously.⁴⁴⁸ In order to circumscribe the responsibility of an accused for participation in a second category of joint criminal enterprise as a co-perpetrator, it is less important to prove that there was a more or less formal agreement between all the participants than to prove their involvement in the system.⁴⁴⁹ Once it has been established that the accused had knowledge of the system of discriminatory ill-treatment, it is a question of determining his involvement in that system, without it being necessary to establish that he had entered into an agreement with the principal perpetrators of the crimes committed under the system to commit those crimes.⁴⁵⁰ The Appeals Chamber considers that the Trial Chamber did not err in law by not requiring evidence of a formal agreement between the co-perpetrators in order to participate in the joint criminal enterprise.

     (ii) Kvocka’s behaviour in the camp

210. Kvocka submits that he warned the members of the security service who committed violations.⁴⁵¹ He also helped detainees, not limiting this help to his acquaintances and friends, by bringing them food, clothes, packages and hygienic supplies.⁴⁵² He asserts that he also protected detainees when he could, shielding them from an attack by a local criminal named Dordjin, and preventing some intoxicated military and paramilitary members from entering the camp. Kvocka adds that the detainees trusted him.⁴⁵³

211. The Prosecution responds that this assertion was considered in detail by the Trial Chamber, but that, after having carefully weighed the evidence and his culpable omissions to act, the Trial Chamber concluded that he could have done far more to mitigate the terrible conditions in the camp.⁴⁵⁴ The Prosecution submits that the Trial Chamber considered the effect of giving such assistance and found that, if the Appellant actively attempted to alleviate detainees’ suffering, he might be more likely to be liable as an aider and abettor, but this circumstance did not relieve his criminal liability in a joint criminal enterprise.⁴⁵⁵ The Prosecution argues that these circumstances do not absolve Kvocka of liability, as it was within the Trial Chamber’s discretion to conclude that these acts could not constitute significant mitigation.⁴⁵⁶

212. The Appeals Chamber understands that Kvocka submits that his intervention to improve conditions for detainees or to prevent the commission of certain crimes is not consistent with the Trial Chamber's finding that he shared the intent to persecute the non-Serb detainees. The Appeals Chamber notes that the Trial Chamber carefully considered the facts raised here by Kvocka⁴⁵⁷ before concluding that he “could have done far more to mitigate the terrible conditions in the camp”.⁴⁵⁸ Standing by itself, this wording might give the impression that the Trial Chamber gave more consideration to what Kvocka failed to do rather than what he actually did. Taken in context, however, the Appeals Chamber believes that the wording does not affect the reasonable nature of the Trial Chamber’s finding that Kvocka should be considered a co-perpetrator in the joint criminal enterprise in the Omarska camp. In light of the measures Kvocka could have taken in view of his position of authority and the influence he had over the guards, the Trial Chamber considered that the positive measures which he took in Omarska camp were not sufficiently numerous or significant to diminish the extent of his participation in the joint criminal enterprise.

213. The Appeals Chamber recalls that the level of an individual’s contribution to the joint criminal enterprise is a relevant factor in determining whether he has the requisite mens rea of a co-perpetrator. The Appeals Chamber stresses that, although the Trial Judgement does not include a section on the establishment of the mens rea, it should not be inferred that the Trial Chamber did not rely on the aforementioned factors when determining Kvocka’s mens rea. Settled case-law provides that an accused’s conduct is a relevant factor in establishing the intentional element of an offence. In this instance, the Trial Chamber balanced Kvocka’s infrequent intervention to improve the situation of certain detainees, family members or others,⁴⁵⁹ and to prevent crimes from being committed⁴⁶⁰ with the considerable role he played in maintaining the functioning of the camp despite knowledge that it was a criminal endeavour.⁴⁶¹ The Appeals Chamber finds that Kvocka does not demonstrate how his infrequent intervention to assist the detainees is per se inconsistent with the Trial Chamber’s finding that he shared the intent to further the common criminal purpose.

     (iii) Kvocka’s willingness to work in the camp

214. Kvocka challenges the Trial Chamber’s finding that he worked in the Omarska camp willingly.⁴⁶² He submits that the evidence on which the Trial Chamber relied did not permit such a finding. Indeed, Kvocka argues that the Trial Chamber erred in interpreting the testimony of Witness DD/10⁴⁶³ and submits that the fact that some reserve unit members lacked discipline in leaving the camp cannot not serve as a standard for the Trial Chamber to conclude that he could leave if he was dissatisfied, and that he was there because it was his assignment.⁴⁶⁴

215. According to the Prosecution, the Trial Chamber relied on the evidence of Witness DD/10 to show that the witness left voluntarily and nevertheless did not lose the employment.⁴⁶⁵ It argues that Kvocka’s claim is without substance, as he was the de facto deputy commander of the camp who did not have to report to anyone when he arrived at the camp for work, and was clearly in a more influential position than Witness DD/10.

216. The Appeals Chamber agrees with the Trial Chamber’s finding that the fact that he did not refuse to participate in a joint enterprise because such refusal would prejudice his career, or that he feared that he would be imprisoned or punished, is not an excuse or a defence to liability for participating in war crimes or crimes against humanity.⁴⁶⁶ Nevertheless, these are circumstances which may be taken into consideration when determining the mens rea.

217. The Appeals Chamber notes that the Trial Chamber considered Kvocka’s allegation that he worked in Omarska camp against his will because he was forced to carry out his professional duties as a police officer.⁴⁶⁷ The Trial Chamber pointed out in this regard that “despite being reportedly distressed by the crimes committed in the camp, Kvocka remained on the job until removed by his superiors”,⁴⁶⁸ and concluded that Kvocka participated not only knowingly but willingly in the events in Omarska camp.⁴⁶⁹

218. The first question before the Appeals Chamber is whether the Trial Chamber erred when reaching the above conclusion, relying inter alia on the fact that, “significantly, Witness DD/10 testified that he left Omarska camp around 25 July 1992, at his own initiative and even after confronting Simo Drljaca about the conditions in the camp, he did not lose his employment”.⁴⁷⁰

219. After reading Witness DD/10’s testimony, the Appeals Chamber considers that the Trial Chamber did not err in concluding that this witness left the camp voluntarily without the witness’ employment being terminated. The Appeals Chamber acknowledges that Witness DD/10’s circumstances were different from those of Kvocka. The Appeals Chamber notes in particular in this respect Witness DD/10’s statement that, having left the job, “I was extremely lucky not to lose my head.”⁴⁷¹ Witness DD/10 also testified that this fortunate outcome could be attributed both to personal circumstances and to the fact that Witness DD/10 was not an employee of Zeljko Meakic with a direct link to the State Security Centre.⁴⁷² This evidence might indicate either that Kvocka chose his employment freely or that he did so under duress. The Appeals Chamber considers that it was up to the Trial Chamber to interpret the evidence either way if the material sufficed for that purpose.

220. The Appeals Chamber considers that the same applies to Kvocka’s second argument, regarding the fact that the organisation in the camp was so lax that guards failed to show up for work without serious, or probably any, repercussions.⁴⁷³ The Appeals Chamber acknowledges that, due to Kvocka’s position of authority and influence, he was in a different situation from that of the other guards. However, in the view of the Appeals Chamber, the material still sufficed to support the interpretation of the Trial Chamber as reasonable.

221. In addition, the Appeals Chamber notes that, to conclude that Kvocka worked willingly in the camp, the Trial Chamber relied on ample evidence such as (i) his own declaration that, had he been given the choice, he would have continued working in the camp until its closure;⁴⁷⁴ (ii) the fact that when he was relieved of his duties at Omarska in June because, by his account, he was not regarded as sufficiently anti-Muslim, he was simply re-assigned to another police station at Tukovi;⁴⁷⁵ (iii) the fact that there was no evidence before it that indicated that Serbs working in the camp who assisted or tried to improve the situation of the non-Serb detainees were punished;⁴⁷⁶ (iv) the fact that Kvocka did not allege duress, nor plead it as a mitigating factor.⁴⁷⁷ The Appeals Chamber finds that a reasonable trier of fact could have reached the conclusion that Kvocka worked willingly in the Omarska camp.

     (iv)Kvocka’s relations with colleagues

222. Kvocka submits that during his stay at Omarska, his relations with his superior and colleagues were not good because he was suspected of collaborating with Muslims.⁴⁷⁸ He points out that Witnesses Zdravko SamardZija and Lazar Basrak testified that he was suspected of collaborating with Muslims.⁴⁷⁹ Another witness, Jadranka Mikic, stated that there were words spread around Omarska that Kvocka was collaborating with Muslims. In its response, the Prosecution argues that these submissions are irrelevant to the argument that Kvocka’s participation was neither willing nor knowing.⁴⁸⁰

223. The Appeals Chamber understands that Kvocka submits that the Trial Chamber failed to take into account the alleged circumstances in assessing the mens rea . Kvocka argues that the attitude of the camp personnel towards him was inconsistent with the Trial Chamber’s finding regarding his intent to further the joint criminal enterprise. On this point, the Appeals Chamber notes that the Trial Chamber did not discuss the issue of the attitude of Kvocka’s colleagues and superiors towards him but merely set out in a footnote that Kvocka alleged that he was a black sheep within the circle of Serb personnel in the camp,⁴⁸¹ without referring to any of the testimony cited by Kvocka in this regard. As a result, the Appeals Chamber considers that the Trial Chamber did not rely on this circumstance when assessing Kvocka's mens rea.

224. However, the Appeals Chamber concurs with the Prosecution’s submission that Kvocka’s argument in this regard is unrelated to the issue of his voluntary participation in the joint criminal enterprise. The fact that Kvocka was thought to be a traitor by some of his superiors and colleagues could tend to show that Kvocka lacked enthusiasm in executing his duties in the camp, but such lack of enthusiasm, though relevant to motives, would not affect his intent to further the joint criminal enterprise.

     (v) Kvocka’s dismissal from the camp

225. Kvocka submits that he was absent from the camp from 16 to 19 June 1992, and was then dismissed by his superior Jankovic on 23 June in a very humiliating way.⁴⁸² He points out that the Trial Chamber accepted documents from the Prijedor Police Station stating that some particular positions in Omarska could not be occupied by workers who had not confirmed their Serbian nationality or did not understand clearly that the only representative of the Serbian people was the Serbian Democratic Party.⁴⁸³ He submits that, according to this finding, the reasons for his dismissal from Omarska were that he was a member of the moderate Reformist Party of Ante Markovic, he and his sister were both married to Bosnian Muslims and he was not a member of SDS.⁴⁸⁴ Kvocka submits that the reason that he was not dismissed from Omarska until 23 June 1992 was that on 1 July 1992 the head of the Security Services Centre, Stojan Zupljanin issued an order not to dismiss or remove employees from their posts if they had no knowledge of the Crisis Staff Decision.⁴⁸⁵

226. The Prosecution submits that the Trial Chamber considered but dismissed this assertion as the Appellant’s suggestion that he was dismissed for his political affiliation was inconsistent with his position that he was dismissed because he assisted the Muslims at the camp.⁴⁸⁶ The fact that Kvocka was dismissed from his position in the camp is irrelevant to his defence that he was unable to resign from his job or leave the camp, as the Trial Chamber found that he would not have been punished if he had resigned or left the camp.⁴⁸⁷

227. When considering Kvocka’s allegations that he was relieved of his duties at the camp on political grounds, the Trial Chamber stated that there was no evidence indicating that the Serbs in the camp who assisted the non-Serb detainees or attempted to improve their situation were punished.⁴⁸⁸ Nor did the Trial Chamber adjudicate on the reasons for Kvocka’s reassignment. The Appeals Chamber understands Kvocka’s argument that his forced dismissal was politically motivated to imply that the Trial Chamber erred in failing to take this circumstance into account when determining his mens rea.

228. The Appeals Chamber notes that Kvocka was dismissed on 23 June 1992, that is the day after the decision mentioned by Kvocka⁴⁸⁹ was adopted and almost a week before the circular signed by Stojan Zupljanin was distributed. Even assuming that the decision applied to positions such as that held by Kvocka, it seems unlikely that it could have been implemented so quickly when the circular of the head of the Security Services Centre in Banja Luka had not even been issued.

229. Accordingly, the Appeals Chamber is not satisfied that Kvocka’s dismissal from the camp was politically motivated and need not consider whether the Trial Chamber erred in failing to take this circumstance into account.

     (vi) Kvocka’s personal situation

230. Kvocka submits he never had the requisite discriminatory intent, arguing that he is married to a Bosnian Muslim and had close association with non-Serbs even during the war.⁴⁹⁰ He argues that he was a member of the moderate Reformist Party of Ante Markovic and that he never showed any intolerance towards other nationals.⁴⁹¹

231. The Prosecution argues that his association with the Muslim community did not detract from the finding that he shared the discriminatory intent of those who physically perpetrated the crimes, that his acts of benevolence cannot obliterate his criminal liability and that it was open to the Trial Chamber to conclude that such acts could not constitute significant mitigation.⁴⁹²

232. Kvocka replies that his association with the Muslim community, his political affiliation and his duty as a professional policeman are facts that disprove the existence of a discriminatory intent.⁴⁹³

233. The Appeals Chamber understands that Kvocka contends that the Trial Chamber erred in omitting to consider these circumstances when assessing his mens rea and argues that his personal situation was not consistent with the Trial Chamber’s finding that he intended to further the joint criminal enterprise. It would be wrong to consider that the Trial Chamber disregarded the information provided by Kvocka with regard to his so-called “personal situation”. The Appeals Chamber notes that, in a sub-section dealing with Kvocka’s personal background, the Trial Chamber reviewed this evidence and concluded that many witnesses depicted a tolerant and politically moderate man who was close to the Muslim community, into which he had married.⁴⁹⁴ However, in the Appeals Chamber’s view, such findings do not preclude a reasonable trier of fact from concluding, in light of all the evidence provided, that the accused intended to further a joint criminal enterprise whose purpose was to persecute the non-Serbs.

     (vii) Conclusion on Kvocka’s intent to participate in the joint criminal enterprise

234. Kvocka argues that although he worked in the Omarska camp, he had no will to participate in the joint criminal enterprise, as he only performed his duties in accordance with the police requirements.⁴⁹⁵ He concludes that his stay in the Omarska camp was not “willing or continuous from the aspect of the joint criminal enterprise theory”.⁴⁹⁶ He further submits that the Prosecution did not prove his intention to support the joint criminal enterprise.⁴⁹⁷

235. The Prosecution argues that the shared criminal intent to act as a co-perpetrator in a joint criminal enterprise does not imply personal enthusiasm or satisfaction, or personal initiative in making the relevant contribution to the common criminal purposes. It submits that the intent exists where an accused is aware of the nature of the intent of the other co-perpetrators and voluntarily contributes to that common purpose, that the motives of the accused are irrelevant to liability and the fact that an accused may internally not approve of the common purpose and wish that the crimes were not being committed is immaterial to his criminal liability.⁴⁹⁸

236. In reply, Kvocka points out that the Krnojelac Trial Judgement held that the Prosecution must demonstrate that each accused and the principal offender had a common state of mind for the crime.⁴⁹⁹ He concludes that the Prosecution did not prove beyond reasonable doubt his intention to participate in the criminal enterprise or his wilful contribution to the execution of the common plan or purpose.⁵⁰⁰

237. To find an accused liable as a co-perpetrator in a systemic joint criminal enterprise, it is necessary to establish that the accused intended to further the criminal purpose of the system,⁵⁰¹ as was correctly stated by the Trial Chamber.⁵⁰² The Appeals Chamber recalls that when the Prosecution relies upon proof of the state of mind of an accused by inference, that inference must be the only reasonable inference available on the evidence.⁵⁰³ It is settled that the benefit of the doubt must always go to the accused.

238. The Trial Chamber found that Kvocka was a co-perpetrator in the joint criminal enterprise in Omarska camp in the following terms:

     Due to the high position Kvocka held in the camp, the authority and influence he had over the guard service in the camp, and his very limited attempts to prevent crimes or alleviate the suffering of detainees, as well as the considerable role he played in maintaining the functioning of the camp despite knowledge that it was a criminal endeavour, the Trial Chamber finds Kvocka a co-perpetrator of the joint criminal enterprise of Omarska camp.⁵⁰⁴

239. The Trial Chamber explicitly stated that Kvocka shared the intent to discriminate against the non-Serb detainees in the camp:

     Kvocka was aware of the persecutory nature of the crimes committed against non-Serbs detained in the camp and, based upon his knowing and substantial participation in the system of persecution pervading Omarska camp, Kvocka had the intent to discriminate against the non-Serbs detained in the camp.⁵⁰⁵

240. The Appeals Chamber is convinced that, in the circumstances of this case, the intent to discriminate against the non-Serb detainees and the intent to further the joint criminal enterprise constitute a single form of intent. Since the joint criminal enterprise at Omarska camp identified by the Trial Chamber was the implementation of a system of discriminatory ill-treatment of non-Serb detainees, the two types of intent are in fact one. The Trial Chamber’s finding regarding Kvocka’s discriminatory intent encompasses the intent to further the joint criminal enterprise. The Appeals Chamber considers therefore that the Trial Chamber inferred from the facts that Kvocka intended to further the joint criminal enterprise and that the inference so drawn accords with the applicable requirements.

241. It remains now for the Appeals Chamber to determine whether a reasonable trier of fact could have inferred this intent from the facts of the case.

242. The Appeals Chamber reiterates firstly that the intent to further the common criminal purpose does not imply any enthusiasm, personal satisfaction or personal initiative in furthering the joint purpose on the part of the co-perpetrator.⁵⁰⁶ The Appeals Chamber considers therefore that Kvocka’s submission that he was simply carrying out his duties in accordance with the police requirements is without merit. Incidentally, it does not appear that maintaining a camp which seeks to subjugate and persecute detainees based on their ethnicity, nationality or political persuasion and in which living conditions are intolerable and the most serious beatings are regularly meted out can possibly be considered as performing “duties in accordance with the police requirements”.⁵⁰⁷

243. The Appeals Chamber agrees with the Trial Chamber’s argument that, given the absence of direct evidence, intent may be inferred from the circumstances, for example, from the accused’s authority in the camp or the hierarchical system.⁵⁰⁸ The Trial Chamber also rightly stated that an intent to further the efforts of the joint criminal enterprise so as to rise to the level of co-perpetration may also be inferred from knowledge of the crimes being perpetrated in the camp and continued participation in the functioning of the camp.⁵⁰⁹ The threshold from which an accused may be found to possess intent to further the efforts of the joint criminal enterprise so as to rise to the level of co-perpetration depends in the final analysis mainly on the circumstances of the case.

244. The Trial Chamber found the following:

     1) that living conditions in Omarska camp were harsh and that discriminatory beatings were regularly meted out to the non-Serb detainees;⁵¹⁰

     2) that Kvocka worked willingly in Omarska camp for approximately 17 days and left his position only when dismissed by his superiors;⁵¹¹

     3) that he was amply informed of the harsh living conditions and abusive treatment endured by the non-Serbs detainees;⁵¹² 

     4) that he participated in the operation of the camp as the functional equivalent of the deputy commander of the guard service and that he had some degree of authority over the guards; ⁵¹³ 

     5) that he was in a position to prevent crimes or alleviate suffering but that he did so only on a few occasions;⁵¹⁴

     6) that Kvocka was aware of the common criminal purpose which prevailed in the camp ;⁵¹⁵

     7) that his participation substantially allowed the system and its insidious acts to continue.⁵¹⁶

245. The Appeals Chamber holds that a trier of fact could reasonably have inferred from these facts that Kvocka shared the intent to further the common criminal purpose. The concentration or detention camp cases have demonstrated repeatedly that such an inference may be drawn when those factors are present.⁵¹⁷ Accordingly, the Appeals Chamber finds that the Trial Chamber did not commit any error in concluding from the evidence that Kvocka possessed the intent to further the joint criminal enterprise of the Omarska camp.
     3. Conclusion on Kvocka’s responsibility

246. In light of the above considerations, the Appeals Chamber upholds the Trial Chamber’s findings that Kvocka contributed to the furtherance of the system of maltreatment of the Omarska camp, with knowledge of the common criminal purpose and intent to further the joint criminal enterprise. Therefore, the Appeals Chamber finds that the Trial Chamber did not err in finding Kvocka guilty as a co-perpetrator of crimes committed as part of the joint criminal enterprise.
     D. Kvocka’s criminal liability for the crime of murder (ground of appeal 5)

247. Kvocka submits that the Trial Chamber erred in finding him guilty of the crime of murder as charged in Count 5, which is prohibited by Common Article 3(1)(a) of the Geneva Conventions and punishable under Articles 3, 7(1) and 7(3) of the ICTY Statute. He asks the Appeals Chamber to overturn the conviction on Count 5. ⁵¹⁸
     1. Temporal limitation of Kvocka’s criminal responsibility

248. First, Kvocka submits that his criminal responsibility is limited exclusively to the period during which he was actually working in the camp and that he could not be held responsible for the crimes committed when he was absent from the camp on official leave. He submits that the Trial Chamber found that he held a position of authority in the camp from 29 May to 23 June 1992 and that the Trial Chamber accepted that he was absent on sick leave from 2 to 6 June and from 16 to 19 June 1992.⁵¹⁹

249. The Prosecution disagrees, arguing that there was no indication that the Trial Chamber required proof of physical presence at the camp in order to infer criminal liability so as to restrict his responsibility exclusively to the time period of the 17 days he was present in the camp.⁵²⁰

250. The Appeals Chamber notes that Kvocka does not claim that the Trial Chamber committed a specific error as regards the temporal limitation of his responsibility, but submits his own interpretation of the Trial Chamber’s findings on this point. It is on the basis of this interpretation that he concludes that the Trial Chamber committed errors. The Appeals Chamber therefore considers that it is important to understand the exact liability incurred by Kvocka according to the Trial Judgement before ruling on the merits of the grounds of appeal submitted by Kvocka.

251. The Appeals Chamber first recalls that the presence of the participant in the joint criminal enterprise, either as co-perpetrator or aider and abettor, at the time the crime is committed by the principal offender is not required for liability to be incurred.⁵²¹ The Trial Chamber concurred with this as it is stressed in its Decision of 13 October 2000 that “while the Defence for the accused Kvocka is right in stating that the Prosecution itself mentioned that the accused ceased to be Commander or Deputy Commander in the Omarska camp sometime in June 1992, it does not follow necessarily that the accused could not be liable for any of the crimes committed after the date his official functions in the camp ceased”.⁵²² While it is legally possible to hold an accused liable for crimes committed outside of his or her presence, the application of this possibility in a given case depends on the evidence.

252. In this case, the Appeals Chamber concurs with Kvocka that the Trial Chamber decided not to hold him responsible for the crimes committed before his arrival in the camp.⁵²³ It also considered that he could not be held responsible for the crimes committed after he left the camp.⁵²⁴ The Appeals Chamber recalls having considered earlier that this conclusion is more akin to a factual finding than to a legal limitation.⁵²⁵

253. Having thus limited Kvocka's responsibility in time, the Trial Chamber carried out an in-depth review of the evidence before it to determine the period during which Kvocka was employed in Omarska camp and concluded that “Kvocka held a position in the camp during the period from about 29 May to 23 June 1992, and that he was absent from the camp on official leave from 2 to 6 June 1992 and from 16 to 19 June 1992. Kvocka thus spent approximately 17 days in Omarska camp”.⁵²⁶

254. Kvocka does not show that the Trial Chamber intended to limit his responsibility to those days when he was effectively working in the camp. Although the meticulous count of the number of days during which Kvocka physically held his position in the camp⁵²⁷ and the statement in paragraph 413(b) of the Trial Judgement that “Kvocka continued working in the camp for approximately 17 days”⁵²⁸ – that is the total number of days during which he was employed in the camp minus the days of his official leave – could prima facie support Kvocka's assertion, other evidence contradicts it altogether. First, the Appeals Chamber points out that the Trial Chamber did not indicate that Kvocka's physical presence in the camp at the time the crimes were committed was necessary for him to be held criminally responsible, while it explicitly excludes Kvocka's responsibility for the crimes committed before he arrived at the camp and after he left. The Appeals Chamber also believes that the meticulous count of 17 days and frequent references thereto were seen by the Trial Chamber as relevant indications of the extent of Kvocka's participation in the running of the camp, his awareness of the system of ill-treatment and the willingness of his participation. The Appeals Chamber does not believe that it can draw other conclusions from the Trial Chamber’s persistent reference to the 17 days. Finally, the Appeals Chamber notes that, when the Trial Chamber ruled on the crimes alleged against Kvocka it used the expression “during the time that he was employed in the camp”, deliberately avoiding the term “worked”:

     The Trial Chamber has found the following in regards to Kvocka:

     […]

     (b) that he continued working in the camp for approximately 17 days;

     c) that the crimes alleged against Kvocka in the Amended Indictment were committed in Omarska during the time that he was employed in the camp;⁵²⁹

255. The Appeals Chamber considers that the Trial Chamber did not limit Kvocka's responsibility to those days when he effectively worked in the camp but held him responsible for crimes committed in the camp from about 29 May to 23 June 1992, i.e. during the time that he was employed in the camp. Kvocka's claims of errors of law based on this erroneous interpretation of the Trial Chamber's findings are therefore dismissed.
     2. Requirements for establishing the charge of murder

256. The Appeals Chamber will now examine Kvocka's grounds of appeal based on the errors of law and fact allegedly committed by the Trial Chamber in connection with the crime of murder.

257. Kvocka submits that in order to establish the charge of murder, the Prosecution is required to prove, first, the death of the victim; secondly, that the death was a result of an act of the accused or his subordinate; and thirdly, that the accused or his subordinate had a motivation and intent to kill the victim or to cause grievous bodily harm with reasonable knowledge that the attack was likely to result in death.⁵³⁰ He submits that the Trial Chamber should first establish the existence of the crime of murder, and then evaluate his responsibility for each individual murder.⁵³¹ Kvocka argues that the Trial Chamber did not give any evaluation of evidence relating to the charge of murders of prisoners in Omarska between 24 May and 30 August 1992,⁵³² and, therefore, the Trial Chamber failed to establish the existence of Kvocka’s acts or omissions in relation to each victim’s death. As a result, he submits that the Appeals Chamber should reverse the convictions under Count 5 of the Indictment.⁵³³

258. The Prosecution argues that the Trial Chamber fully considered the evidence before arriving at its conclusion that murders occurred at Omarska.⁵³⁴ In its Decision on Defence Motions for Acquittal, the Trial Chamber correctly applied the standard of proof relating to the sufficiency of evidence and held that, in the absence of evidence to support each and every element of the crime, the accused would be entitled to an acquittal, and consequently the Trial Chamber acquitted Kvocka of several murders.⁵³⁵ The Prosecution then argues that, to prove beyond reasonable doubt that a person was murdered, it is not necessarily required that the dead body of the victim be recovered, but that it may be reasonably inferred from the evidence that the victim was dead as a result of what happened at the camp.⁵³⁶ Further, the Prosecution submits that the fact that Kvocka may not have been liable in respect of all the killings that occurred at Omarska is immaterial both to the legal basis for his culpability and his sentence, and that therefore this ground of appeal must fail.⁵³⁷

259. The Trial Chamber referred to the case-law of the ICTY and ICTR and adopted the following definition of the crime of murder:

     The ICTY and the ICTR have consistently defined the crime of murder as requiring that the death of the victim result from an act or omission of the accused committed with the intent to kill, or with the intent to cause serious bodily harm which the perpetrator should reasonably have known might lead to death.⁵³⁸

     The Appeals Chamber cannot but agree with the Trial Chamber’s definition, but wishes to clarify the following.

260. In the Krnojelac case, the Trial Chamber rightly stated that proof beyond reasonable doubt that a person was murdered does not necessarily require proof that the dead body of that person has been recovered.⁵³⁹ The fact of a victim’s death can be inferred circumstantially from all of the evidence presented to the Trial Chamber. All that is required to be established from that evidence is that the only reasonable inference from the evidence is that the victim is dead as a result of acts or omissions of the accused or of one or more persons for whom the accused is criminally responsible.⁵⁴⁰

261. Accordingly, for the crime of murder under Article 3 of the Statute to be established, the Prosecutor bears the onus of proving:

     1) the death of a victim taking no active part in the hostilities;

     2) that the death was the result of an act or omission of the accused or of one or more persons for whom the accused is criminally responsible;

     3) the intent of the accused or of the person or persons for whom he is criminally responsible

     a) to kill the victim; or
     b) to wilfully cause serious bodily harm which the perpetrator should reasonably have known might lead to death.⁵⁴¹

262. In a joint criminal enterprise such as that conducted in Omarska camp, it is necessary to prove that the death of the victim is the result of implementing a joint criminal plan, i.e., of setting up a system of ill-treatment. In this case it has to be proved that the death of the victim was the result of what happened in Omarska camp, be it inhumane conditions, beatings or ill-treatment. On this point, Kvocka rightly argues that the Trial Chamber must first establish the existence of the crime of murder. In this regard, the Appeals Chamber notes that the Trial Chamber did not provide a specific section for the murders committed in Omarska camp and for the specific responsibility of each of the accused for these murders. The Trial Chamber made, however, a number of findings throughout the Trial Judgement on the charges of murder alleged in the Indictment. The Appeals Chamber refers to its previous discussion in this respect⁵⁴² and recalls that such a generic approach does not invalidate the Trial Judgement. The Appeals Chamber dismisses Kvocka's contention that the Trial Chamber failed to evaluate the evidence in its ruling on the charges of murder.

263. In addition, contrary to Kvocka's claim, to find an accused guilty of the crime of murder it is not necessary to establish his participation in each murder. For crimes committed as part of a joint criminal enterprise it is sufficient to prove not the participation of the accused in the commission of a specific crime but the responsibility of the accused in furthering the common criminal purpose.⁵⁴³ The Appeals Chamber finds that the Trial Chamber did not err in finding Kvocka guilty of the crime of murder without establishing his specific responsibility for each murder committed.

264. For the foregoing reasons, the Appeals Chamber dismisses this sub-ground of appeal.
     3. Charges of individual murders

265. Before reviewing Kvocka's specific allegations, the Appeals Chamber notes that he was not found guilty of murder in connection with all the incidents listed in Schedule A. A careful reading of the factual findings of the Trial Chamber shows that Kvocka was found guilty under Article 7(1) of the Statute of the murder of the following victims listed in Schedule A: Ahil Dedic,⁵⁴⁴ Mehmedalija Nasic,⁵⁴⁵ Ismet Hodzic ⁵⁴⁶ and Becir Medunjanin.⁵⁴⁷ The Appeals Chamber found no factual findings on the murder of the other persons listed in Schedule A under Count 5, namely: Abdulah Puskar, “Hanki” Ramic, Suljo Ganic, Mehmedalija Sarajlic and an unidentified detainee shot on 30 May 1992 by a guard named Pavlic. Therefore, the Appeals Chamber considers that it is not necessary to review Kvocka's arguments on the murders of Abdulah Puskar, “Hanki” Ramic, Suljo Ganic, Mehmedalija Sarajlic and the unidentified detainee shot on 31 May 1992,⁵⁴⁸ since the Trial Chamber did not find him guilty of these murders.

     (a) Murder of Ahil Dedic

266. Kvocka argues that, as the murder of Ahil Dedic occurred before he arrived at the Omarska camp, he should not have been held responsible for it.⁵⁴⁹ The Prosecution responds that the Trial Chamber limited Kvocka’s liability to the period from about 29 May to 23 June 1992 and that Dedic was brutally beaten unconscious either on 27 or 28 May.⁵⁵⁰ It accepts that the killing may have occurred the same night Kvocka arrived at the camp for the first time, just a few hours before he commenced his duties.⁵⁵¹ However, it submits that Kvocka’s argument at trial that the security service was not in place at that time must be rejected, as he was ordered to go to the camp and specifically to find Meakic and gather a group of police officers from the Omarska police station. In the view of the Prosecution, Kvocka heard about Dedic’s death but chose to do nothing about it. According to it, there is sufficient evidence of proximity in time and place to find Kvocka liable for this murder. ⁵⁵² Kvocka replies that since the Prosecution accepts that the killing of Dedic occurred a few hours before he arrived at the camp for the first time, he should not be held responsible for the murder.⁵⁵³

267. It is clear from paragraph 76 of the Trial Judgement that the Trial Chamber concluded that Ahid Dedic was beaten in Omarska Camp. Quoting from the testimony of witness Fadil Avdagic the Trial Chamber also seems to infer that Ahil Dedic was murdered. The Appeals Chamber notes that Kvocka does not dispute that Ahil Dedic was murdered in Omarska camp. The Appeals Chamber must in fact determine whether the Trial Chamber erred in finding Kvocka guilty of this murder given the time when it occurred. To do so, the Appeals Chamber must determine the date of the murder. The Appeals Chamber notes that the Trial Chamber did not establish that date. Fadil Avdagic, on the basis of whose testimony the Trial Chamber established the murder of Ahil Dedic, testified that the crime was committed in the morning of 28 May 1992, very soon after he and other detainees were transferred from Keraterm.⁵⁵⁴ The Appeals Chamber notes that witness Ermin Strikovic, whom Kvocka quotes in support of his ground of appeal, testified that the incident occurred the same day, soon after he and a group of other detainees were transferred from Keraterm.⁵⁵⁵ In its Respondent's Brief, the Prosecution refers to the evidence given by both witnesses and concludes that “Ahil Dedic was brutally beaten unconscious either on 27 or 28 May”⁵⁵⁶, while accepting “that the killing may have occurred a few hours before Kvocka arrived at the camp for the first time”,⁵⁵⁷ i.e., on 29 May 1992, which is a contradiction in terms.⁵⁵⁸

268. The Appeals Chamber holds that since the Trial Chamber provided no detailed information or convincing factual basis, it has not been proved that the murder of Ahil Dedic was committed after Kvocka's arrival in Omarska camp, the time limit set by the Trial Chamber on Kvocka's responsibility. The Appeals Chamber grants this ground of appeal and finds that the Trial Chamber erred in finding Kvocka guilty of the murder of Ahil Dedic.

     (b) Murder of Ismet Hodzic

269. Kvocka submits that the Trial Chamber erred in finding him guilty of the murder of Ismet Hodzic. He argues that the witness who testified about Ismet Hodzic’s death, Jasmir Okic, only heard about it from Hodzic’s brother.⁵⁵⁹ He submits that, as there is no record of the deaths that occurred at the camp during his stay, and people may have died of natural causes, it is impossible to evaluate this incident.⁵⁶⁰ According to the Prosecution, the Trial Chamber concluded that the medical care at Omarska was grossly inadequate,⁵⁶¹ and since the ICRC Commentary (Additional Protocol I) to Article 75(1)(a) of Additional Protocol I recognizes that murder includes manslaughter by wilful negligence, the substantial cause of the death of Hodzic must be attributed to the personnel of the camp because of their wilful omission to provide medical care to him.⁵⁶² It argues that Kvocka must be held liable as the death resulted from a prolonged lack of medical care and Kvocka was in a position to assist detainees in receiving medical care.⁵⁶³ Kvocka replies that he was not in the camp at the time and that this murder should be separately analysed.⁵⁶⁴

270. Having noted that several detainees with chronic medical conditions died from lack of attention in Omarska camp,⁵⁶⁵ the Trial Chamber indicates in a footnote that Ismet Hodzic, a diabetic, died.⁵⁶⁶ The Appeals Chamber interprets this terse reference as a factual finding on the murder alleged by the Prosecution in Schedule A of the Indictment. It first has to be established whether the circumstances in which Ismet Hodzic died constitute murder. The Trial Judgement is silent on the circumstances surrounding Ismet Hodzic's death. Having examined the testimony cited by the Trial Chamber,⁵⁶⁷ the Appeals Chamber is satisfied that a reasonable trier of fact could conclude that the victim died as a result of deliberate lack of treatment for his chronic ailment. It is therefore reasonable to conclude that Ismet Hodzic, who died as a result of wilful omission to provide medical care, was murdered.

271. The Appeals Chamber will now consider whether Kvocka could reasonably be held responsible for this murder. In accordance with the testimony cited by the Trial Chamber, the death of Ismet Hodzic occurred in June 1992, although it cannot be established whether it occurred before or after Kvocka left the camp. Nor can it be established, on the basis of the testimony – not even approximately – when Ismet Hodzic arrived at Omarska camp, in other words when the denial of medical care started . The testimony of Witness AK, which is cited by the Prosecution, states that a diabetic, who was about 20 years old and had been detained in the camp since May 1992, died as a result of lack of drugs.⁵⁶⁸ The Appeals Chamber notes that the person's name is not specified and that, apart from diabetes, there is no evidence that this person was Ismet Hodzic. Nor did the Trial Chamber make any reference to this in support of its finding. The Appeals Chamber finds that the evidence is insufficient to establish that the acts or omission that caused Ismet Hodzic's death occurred during the time that Kvocka was employed in the camp. Since Kvocka's responsibility has been limited by the Trial Chamber to crimes committed during the time that he was employed in the camp, i.e. from about 29 May to 23 June 1992, the Appeals Chamber finds that no reasonable trier of fact could have held Kvocka responsible for the murder of Ismet Hodzic.

     (c) Murder of Mehmedalija Nasic

272. Kvocka agrees that the murder of Mehmedalija Nasic did occur, but that, according to the testimony of different witnesses, the murder was a result of an altercation.⁵⁶⁹ Additionally, Kvocka submits that the testimony of witnesses Dragan Popovic, Jasmir Okic and himself suggested that he was not in the camp when the murder occurred. He argues that there is only one witness claiming the opposite, Mirsad Alisic, and that his credibility is in question.⁵⁷⁰ The Prosecution responds that it was open to the Trial Chamber to accept the evidence of Mirsad Alisic and Azedin Oklopcic over that of the Appellant and Popovic.⁵⁷¹ The Prosecution submits that Kvocka was found to be aware of the murder as he was standing right next to the guard who shot the victim, and that he offered a motive for the killing when he chastised another witness for “failing to keep Nasic quiet ”.⁵⁷² Kvocka replies that the Prosecution points out in its Respondent’s Brief that the murder of Mehmedalija Nasic happened because the victim disobeyed the rules, and that the Trial Chamber could have concluded on the evidence that he was not present in the camp when the murder happened.⁵⁷³ He adds that the testimony of Alisic is “completely unacceptable”, as the consistent evidence of witnesses Dragan Popovic, Jasmir Okic, and Kvocka himself shows that he was not present at the time of the murder.⁵⁷⁴ He requests the Appeals Chamber to vacate the conviction for this murder.⁵⁷⁵

273. The Appeals Chamber first recalls that the presence of the participant in a joint criminal enterprise at the time the crime is committed by the principal offender is not required for liability to be incurred.⁵⁷⁶ Kvocka's argument that he was not physically present at the time the crime was committed is therefore without merit and does not need to be addressed by the Appeals Chamber .

274. The Trial Chamber's finding of murder in the case of Mehmedalija Nasic is based on the testimony of witness Mirsad Alisic.⁵⁷⁷ The Appeals Chamber is satisfied that a reasonable trier of fact could reach the same conclusion on the basis of this testimony. Kvocka does not show that the Trial Chamber committed an error of fact when it accepted the testimony of Mirsad Alisic and found that Mehmedalija Nasic was the victim of murder as part of the joint criminal enterprise. The Appeals Chamber dismisses this ground of appeal.

     (d) Murder of Becir Medunjanin

275. Kvocka was charged as a co-perpetrator in the murder of Becir Medunjanin in the “white house” in June 1992. He submits that he did not know about this incident at all, and that Witness T did not mention Kvocka in his testimony.⁵⁷⁸ He argues that the Kozara’s Gazette published that Medunjanin was arrested on 11 or 12 June 1992 and might be brought to the Omarska camp on 13 or 14 June.⁵⁷⁹ The testimony of witness Fadil Avdagic stated that the death of Medunjanin occurred on 16 or 17 June, but, Kvocka submits, he was absent from the camp from 16 to 19 June.⁵⁸⁰ The Prosecution responds that Kvocka’s physical absence is immaterial to his liability, as he was still officially assigned to the camp and continued to carry out his duties after his leave.⁵⁸¹ The beatings of Medunjanin, which led to his death, occurred immediately after his arrival at the camp on 10 June, when Kvocka was at the camp.⁵⁸² It argues that since this assault occurred before Kvocka left the camp on 23 June, he must be held liable for this killing.⁵⁸³ Kvocka replies that since the Prosecution accepts that the murders of Becir Medunjanin happened during his official leave from the camp, he should not have been held responsible for these murders.⁵⁸⁴

276. The Appeals Chamber refers to its earlier findings on the temporal limitation of Kvocka's criminal responsibility as determined by the Trial Chamber⁵⁸⁵ and recalls that Kvocka is responsible for the crimes, for which he is charged by the Prosecution, which were committed in Omarska camp from about 29 May to 23 June 1992, during the time that he was employed in the camp. The Appeals Chamber recalls once again that the physical presence of the participant in the joint criminal enterprise at the time the crime is committed by the principal offender is not required for liability to be incurred.⁵⁸⁶ With regard to knowledge of this specific crime, the Appeals Chamber concurs with the finding of the Trial Chamber that a participant in a joint criminal enterprise would not need to know of each crime committed in order to be criminally liable.⁵⁸⁷ Merely knowing that crimes are being committed within a system and knowingly participating in that system in a way that facilitates the commission of a crime or which allows the criminal enterprise to function effectively or efficiently is enough in this regard. The Appeals Chamber is therefore satisfied that Kvocka has failed to show that the Trial Chamber erred in holding him criminally responsible for the murder of Becir Medunjanin. The Appeals Chamber holds that this ground of appeal is without merit.

     (e) Conclusion

277. For the foregoing reasons, the Appeals Chamber reverses the Trial Chamber’s findings on the murder of Ahil Dedic and Ismet Hodzic and finds Kvocka not guilty of these two murders. The Appeals Chamber considers nevertheless that these two errors do not invalidate Kvocka’s conviction for murder under Count 5 insofar as it upholds Kvocka's convictions for the murders of Mehmedalija Nasic and Becir Medunjanin. The Appeals Chamber will assess any impact these two errors may have on the sentence in Chapter VII (Sentencing).
     E. Kvocka’s criminal liability for the crime of torture (ground of appeal 6)

278. Under this ground of appeal, Kvocka submits that the Trial Chamber erred in finding him responsible for the torture of detainees in the Omarska camp as charged in Count 9 of the Indictment.⁵⁸⁸
     1. Required elements of the crime of torture

279. Kvocka submits that the Trial Chamber considered that the elements of torture in an armed conflict required, inter alia, the infliction of severe pain or suffering and that at least one of the persons involved in the torture process be a public official or a de facto organ of a State or any other authority -wielding entity.⁵⁸⁹ Kvocka argues that the Trial Chamber should have evaluated all the constituent elements of the crime of torture with respect to all the persons listed as victims of torture in Schedule A of the Indictment. He contends that the Trial Chamber erred in failing to do this.⁵⁹⁰

     (a) Participation of a public official

280. Kvocka submits that the crime of torture requires, inter alia that the perpetrator or one of the perpetrators be a public agent.⁵⁹¹ Consequently, he submits that the Trial Chamber erred in finding that Zigic and Knezevic participated in the crime of torture, as they were not public agents.⁵⁹²

281. The Prosecution responds that it is not a requirement of the crime of torture that the perpetrator or one of the perpetrators must be a State or public official. After reviewing the relevant ICTY and ICTR jurisprudence, the Prosecution claims that, in this case, the Trial Chamber implicitly rejected the requirement of the Furundzija Trial Judgement that at least one of the persons involved be acting in a “non-private capacity”.⁵⁹³ It adds that the Kunarac Appeals Chamber held that the public official requirement is not a requirement under customary international law in relation to the criminal responsibility of an individual outside the framework of the Torture Convention.⁵⁹⁴ It claims that there are no cogent reasons to depart from the law identified in the Kunarac Appeal Judgement.⁵⁹⁵

282. Nevertheless, the Prosecution argues that, even if there is such a requirement, it was met in the circumstances of this case. It contends that the evidence shows that none of the perpetrators involved in the acts of torture in this case were acting in a private capacity.⁵⁹⁶ According to the Prosecution, Kvocka was found guilty of acts of torture committed within the confines of a camp set up by the Bosnian Serb entity, where abuse of non-Serb detainees was standard procedure. It argues that the torture was committed by camp personnel and officials of various entities and agencies representing the Bosnian Serb entity acting in a non-private capacity. The Prosecution thus contends that the “FurundZija requirement” is satisfied.⁵⁹⁷ Moreover, the Prosecution argues that Kvocka’s assertion regarding Zigic and Knezevic must be dismissed, as those two individuals were both mobilised soldiers at the material time and were able to commit torture as a result of the assistance given to them by camp officials.⁵⁹⁸ It submits that apart from their personal involvement, there was sufficient evidence to prove that officials or organs representing the Republika Srpska were consenting to, acquiescing in or failing to prevent or punish these acts of torture.⁵⁹⁹

283. Contrary to Kvocka’s allegation,⁶⁰⁰ the Appeals Chamber considers that the Trial Chamber did not require that at least one of the perpetrators of the act of torture be a public agent. The Trial Chamber began by noting that the Kunarac Trial Judgement departed from the previous jurisprudence by not requiring the involvement of a state official or any other authority-wielding person in order for the offence to be regarded as torture.⁶⁰¹ The Trial Chamber continued that it was persuaded by the reasoning of the Kunarac Trial Judgement that the state actor requirement imposed by international human rights law was inconsistent with the application of individual criminal responsibility for international crimes found in international humanitarian law and international criminal law.⁶⁰² The position taken by the Trial Chamber in this respect is clearly illustrated by the title chosen to introduce the discussion related to this question, namely, “(i) No State Actor Requirement”. In addition, when enunciating the definition applied to the present case, the Trial Chamber deliberately omitted any public agent requirement.⁶⁰³

284. The Appeals Chamber will next consider whether or not the Trial Chamber committed an error of law in not requiring that the crime of torture be committed by a public official or, in the case of a plurality of perpetrators, that at least one of the persons involved in the torture process be a public official. This question was resolved by the Appeals Chamber in the Kunarac Appeal Judgement. In that case, the Appeals Chamber concluded that the Kunarac Trial Chamber was correct to take the position that the public official requirement was not a requirement under customary international law in relation to the criminal responsibility of an individual for torture outside of the framework of the Torture Convention.⁶⁰⁴ The Appeals Chamber in the present case reaffirms that conclusion. As a result, the Appeals Chamber finds that Kvocka’s argument that he could not be found guilty of torture for acts perpetrated by Zigic and Knezevic on the ground that they were not public officials is bound to fail, regardless of the precise status of these two individuals. This sub-ground of appeal is rejected.

     (b) The Trial Chamber’s evaluation of the constituent elements

285. Kvocka argues that when evaluating his responsibility for the crime of torture, all its constituent elements need to be established in every individual case.⁶⁰⁵ He argues that the Trial Chamber did not accept or apply this method to evaluate the charges against him and thus erred in not evaluating the pain or suffering of every victim of torture enumerated in the Schedules of the Indictment. Kvocka submits that this resulted in a wrong conclusion regarding his responsibility as a co-perpetrator for the crime of torture. According to him, the Trial Judgement failed to show what was accepted and what was rejected by the Trial Chamber in reference to the charges against him.⁶⁰⁶

286. The Prosecution agrees that Article 23(2) of the Statute and Rule 98ter (C) of the Rules require that a judgement of a Trial Chamber be accompanied by a “reasoned opinion in writing”.⁶⁰⁷ However, it adds that a tribunal is not obliged to give a detailed answer to every argument raised, nor is it required to recount and justify its findings in relation to every submission made during trial.⁶⁰⁸ The Prosecution submits that, in the absence of some indication that the Trial Chamber did not weigh all the evidence that was presented to it, the Trial Chamber’s reasoned opinion will not be defective as a result of a failure to refer to a witness, even if that witness’ evidence contradicts the findings of the Trial Chamber.⁶⁰⁹ The Prosecution is of the opinion that a Trial Chamber is only required to make findings of those facts which are essential to a determination of guilt on a particular count, and is not required to make findings in relation to other facts which are not essential, even if they were expressly alleged in the Indictment.⁶¹⁰ Finally, the Prosecution submits that the legal test is whether a judgement indicates the material findings of fact made by the Trial Chamber, indicates the evidence on which those findings are based, and the reasons why those facts, in law, render the accused criminally liable for the crimes of which he is found guilty.⁶¹¹

287. The Prosecution submits that the Trial Chamber adequately set out its “crime based” factual findings, held that the Prosecution had established beyond a reasonable doubt that acts of torture as defined under common Article 3 of the Geneva Conventions and Article 5(f) of the Statute were committed at the camp, and considered all the legal elements of torture.⁶¹² It also submits that the Trial Chamber indisputably correctly applied the standard of proof defined in its Decision on Defence Motions for Acquittal.⁶¹³ Although the Trial Chamber stated that it did not intend to recount every single act of violence and abuse, it made specific, summarised, core findings relating to torture,⁶¹⁴ and found that the beatings alleged in the Indictment, and threats of rape and other forms of sexual violence, amounted to torture.⁶¹⁵ The Prosecution also notes that Kvocka chose not to challenge at trial that torture had taken place at the Omarska camp.⁶¹⁶ In light of the above arguments, the Prosecution submits that acts of torture were committed during Kvocka’s stay at the camp, which were sufficient in law to hold him liable as a participant in the joint criminal enterprise encompassing the acts of torture.⁶¹⁷

288. With regard to the alleged insufficiency of reasoning in the Trial Judgement, the Appeals Chamber refers to its previous consideration of the issue and reaffirms that a Trial Chamber is required only to make findings of facts, which are essential to a determination of guilt on a particular count, and that it is in the discretion of the Trial Chamber to decide which legal arguments to address.⁶¹⁸ In this respect, the Appeals Chamber recalls that Schedules A to E are an integral part of the Indictment. The Appeals Chamber previously noted that, in the Trial Judgement, the Trial Chamber had adopted a generic approach, not making factual findings in relation to each incident contained in the Schedules and underlying crimes contained in the Indictment.⁶¹⁹ An individualised approach would have been preferable.⁶²⁰ However, the Appeals Chamber has already stated that the generic approach of the Trial Chamber does not render the Trial Judgement invalid where a crime is based on a number of individual instances, as long as the Trial Chamber actually made factual findings on individual crimes underlying the convictions of the Appellants .⁶²¹

289. The Appeals Chamber emphasizes that a crime is made out only if all its constituent elements are established. If the crime requires an objective or subjective element which is not proven, the crime has not been established. The crime of torture was defined by the Trial Chamber as the intentional infliction, by act or omission, of severe pain or suffering, whether physical or mental, for a prohibited purpose, such as obtaining information or a confession, punishing, intimidating, humiliating, or coercing the victim or a third person, or discriminating, on any ground, against the victim or a third person.⁶²² The Appeals Chamber notes that this definition is not challenged by the parties. The Appeals Chamber considers that the fact that Kvocka did not dispute at trial that torture occurred in the camp did not relieve the Prosecution of its obligation to prove the crimes of torture it specifically alleged in the Indictment and that Kvocka incurred criminal responsibility for each of them beyond reasonable doubt. As such, the Trial Chamber was required in relation to each victim whose name is listed in the Indictment to establish, first, if the victim had endured severe pain or suffering, whether physical or mental, and, second, if this pain or suffering had been intentionally inflicted for one of the prohibited purposes.

290. The Appeals Chamber notes that no factual findings for torture can be found in the Trial Judgement for the following victims named in Schedule A: Witness A, Witness AL, Eno Alic, Fikret Harambasic, Asef Kapetanovic,⁶²³ Avdo Kapetanovic and Abdulah Puskar. The Appeals Chamber underlines that Kvocka was not found guilty for the torture of these individuals. However, a review of the factual findings made by the Trial Chamber throughout the Trial Judgement shows that Kvocka was found guilty under count 9 of the Indictment for torture committed against the following persons listed in Schedule A: Witness AJ,⁶²⁴ Witness AK,⁶²⁵ Emir Beganovic,⁶²⁶ Abdulah Brkic,⁶²⁷ Muhamed Cehajic,⁶²⁸ Slavko Ecimovic,⁶²⁹ Jasmin Hrnic,⁶³⁰ Hase Icic,⁶³¹ Asef Kapetanovic,⁶³² Emir Karabasic,⁶³³ Silvije Saric,⁶³⁴ Nusret Sivac⁶³⁵ and Witness T.⁶³⁶

291. The Appeals Chamber considers that, once the material findings of fact were identified, the Trial Chamber was required to indicate the reasons why those facts, in law, rendered Kvocka criminally liable for the crime of torture. Although the Trial Chamber did not make specific legal findings as to each incident for which Kvocka was found guilty of torture, the Appeals Chamber notes that the Trial Chamber made general legal findings, in paragraphs 157 and 158 of the Trial Judgement regarding the prohibited purpose as well as in paragraphs 144, 145, 149, 151 and 164 regarding the severe pain or suffering endured by the detainees in the Omarska camp. In light of these general findings, the Appeals Chamber finds that the Trial Chamber considered that the requirement of severe pain or suffering was met for each of the incidents listed in Schedule A which had been factually established. This was, in the view of the Appeals Chamber, a conclusion a reasonable trier of fact could have made. This sub-ground of appeal is dismissed.
     2. Alleged Factual Errors

     (a) Error relating to general findings

292. Kvocka notes that, in paragraph 151 of the Trial Judgement, the Trial Chamber took into account not only the nature, purpose, consistency and severity of the abuse, when evaluating the perpetrator’s acts, but also the status of both the victims and the perpetrators. He challenges the Trial Chamber’s findings for two reasons.⁶³⁷ First, he submits that the elements considered by the Trial Chamber do not meet the requirement of the existence of severe pain or suffering. Secondly, he contends that he had no authority as a security service member to influence or improve the conditions of detention, including the quality and quantity of water and food, conditions that were recognized by the Trial Chamber as elements of torture.⁶³⁸

293. The Prosecution responds that Kvocka’s argument that he is not liable because the security service could not influence or improve the conditions at the camp is misconceived, since the inhumane conditions, such as the lack of food and hygiene, were never alleged or found to amount to torture. The Prosecution submits that, on the contrary, the findings relating to torture centred on the beatings and sexual offences that took place in the camp.⁶³⁹

294. With regard to Kvocka’s first contention, the Appeals Chamber notes that Kvocka manifestly failed to provide the Appeals Chamber with arguments in support of his objection and failed to provide precise references to any relevant part of the Trial Judgement as required by the Practice Direction on Formal Requirements for Appeals From Judgement.⁶⁴⁰ The Appeals Chamber cannot be expected to consider a party’s submission if it is vague and suffers from other formal and obvious insufficiencies.⁶⁴¹ As a result, the Appeals Chamber dismisses this contention without considering its merits.

295. Turning to Kvocka’s second argument, the Appeals Chamber recalls that Kvocka was found criminally responsible as a co-perpetrator of the crimes committed as part of the joint criminal enterprise of the Omarska camp at the time when he was employed there. When assessing the responsibility of an accused for crimes committed as part of a joint criminal enterprise, it is not a matter of determining what the accused could have done but what he did do to contribute to the joint criminal enterprise. That Kvocka was unable to improve the conditions of detention is of no consequence to his criminal responsibility since his contribution to the joint criminal enterprise encompassing the crimes resulting from the conditions of detention has been established. The argument put forward by Kvocka is thus bound to fail.

     (b) Kvocka’s absence from the camp

296. Kvocka submits that the Trial Chamber held that he was not responsible for crimes committed in the period when he was absent from the camp and, therefore, it should have considered his work schedule in the camp to take into account his days off.⁶⁴² He specifically submits that he is not liable for the torture of Eno Alic, Fikret Harambasic, Jasmin Hrnic, Hase Icic, Emir Karabasic and Senad Muslimovic as they were tortured on 18 June 1992 during his absence from the camp.⁶⁴³

297. The Prosecution responds that it is irrelevant that Kvocka was absent from the camp if, through his contribution, he furthered the functioning of the system of ill-treatment.⁶⁴⁴ The Prosecution further argues that an individual who intends to contribute to a continuing system of ill-treatment does not confine his criminal will to the commission of individual crimes, but rather to the system itself: his conduct is part of the continuing system of mistreatment.⁶⁴⁵ More specifically, Kvocka’s liability for crimes committed during his sporadic and temporary periods of absence is not excluded, since there were clear findings that he was still liable for crimes committed during his two periods of absence.⁶⁴⁶

298. The Appeals Chamber begins by noting that Kvocka was not found guilty by the Trial Chamber in relation to the torture of Eno Alic and Fikret Harambasic.⁶⁴⁷ The Appeals Chamber further notes that it has already determined that the Trial Chamber did not limit Kvocka's responsibility to the period he was physically present in the camp but held him responsible for crimes committed in the camp from about 29 May to 23 June 1992, i.e., during the time that he was employed in the camp.⁶⁴⁸ This sub-ground of appeal therefore fails.

     (3) Specific charges of torture

     (i) Torture of Abdulah Puskar and Silvije Saric

299. Kvocka submits that Abdulah Puskar and Silvije Saric were allegedly tortured on 20 June 1992. He submits that Witnesses A, K, B and J confirmed that they saw the victims in the camp⁶⁴⁹ and that Witnesses B and J also claimed that they heard screams one night on the first floor of the Administration Building and recognised the voice of Puskar. However, they did not give an approximate date of the incident.⁶⁵⁰ Kvocka argues that, as Witness AK testified that he saw Puskar being pulled out from “Mujo’s room” on the ground floor of the Administration Building between 20 and 30 July 1992, the torture of Puskar must have happened after 20 July 1992, and therefore after his departure from the camp.⁶⁵¹ Kvocka argues that he cannot be held responsible for this act of torture.⁶⁵²

300. The Prosecution responds that the evidence shows that the torture of Silvije Saric occurred on or about 10 June, and forms the basis for his liability for the persecution charge, as the acts of torture were committed during Kvocka’s stay at the camp, which is sufficient in law to hold him liable in the joint criminal enterprise for acts of torture.⁶⁵³ The torture of Abdulah Puskar, however, occurred sometime in July, thus falling outside the period of Kvocka’s employment at the Omarska camp and does not form the basis for his liability.⁶⁵⁴

301. The Appeals Chamber notes that Kvocka was not held responsible for the torture of Abdulah Puskar since the Trial Chamber did not make any factual finding in this respect.⁶⁵⁵ As regards the torture of Silvije Saric, the Appeals Chamber considers that Kvocka has failed to identify a discernible error committed by the Trial Chamber. Consequently, this sub-ground of appeal is dismissed.

     (ii) Torture of Slavko Ecimovic

302. Kvocka submits that no evidence was presented at trial relating to the alleged torture of Slavko Ecimovic during June 1992.⁶⁵⁶ He asserts that Ecimovic was the head of the armed formations that carried out the armed attack in Prijedor on 30 June 1992 and that he stayed in the camp only for a short period.⁶⁵⁷ Kvocka submits that the exact date of his torture was not known, and that none of the required elements of torture was proved beyond reasonable doubt.⁶⁵⁸

303. The Prosecution responds that the Trial Chamber specifically found that Ecimovic had been severely beaten on 10 June 1992. It adds that the Trial Chamber found that Slavko Ecimovic had been brutalised when he arrived at the camp, that the evidence showed that Kvocka was present at his arrival, and that the victim and two other detainees were subsequently tortured by Zigic two days later, removed from the camp and never seen again.⁶⁵⁹

304. Contrary to Kvocka’s argument, the Appeals Chamber considers that it was reasonable for the Trial Chamber to find Kvocka criminally responsible for the torture of Slavko Ecimovic on the basis of the evidence presented at trial. The Appeals Chamber notes that, when referring to the torture of Slavko Ecimovic, the Trial Chamber relied on the testimony of Witness AK, who testified that Slavko Ecimovic had been very severely beaten on 10 June 1992.⁶⁶⁰ Although the Trial Chamber did not make any specific legal finding in respect to this victim, the Appeals Chamber reasserts that the general legal findings made in the Trial Judgement were meant to encompass, among others, this factual finding. This sub-ground of appeal is therefore rejected.

     (iii) Torture of Witness AK, Asef Kapetanovic,⁶⁶¹ Witness AJ and Emir Beganovic

305. Kvocka submits that the torture of Witness AK, Asef Kapetanovic, Witness AJ and Emir Beganovic occurred between 7 and 12 June 1992 and constituted one of the first cases of severe beatings. He argues that he should not be found responsible for these beatings since he did not want to, nor did he contribute to, the severe physical pain and psychological suffering of these victims.⁶⁶² Kvocka points to his relationship with Bosnian Muslims to substantiate his argument.⁶⁶³ Further, he contends that the torture of these individuals was carried out without the participation of a public agent, which was considered by the Trial Chamber to be a requisite element of the crime of torture.⁶⁶⁴

306. The Prosecution responds that the Trial Chamber found that the beatings of Beganovic by Zigic did not amount to torture but cruel treatment. It adds that they occurred during Kvocka’s period of employment at Omarska camp.⁶⁶⁵ The Prosecution submits that the Trial Chamber also found that the beatings of Witness AK, Asef Kapetanovic, Witness AJ and Slavko Ecimovic occurred on or about 10 June 1992, and thus fell within Kvocka’s period of employment at the camp.⁶⁶⁶ With regard to the argument that Kvocka did not contribute to the suffering of the victims and did not want them to suffer, the Prosecution contends that Kvocka has misapprehended the mens rea element of torture.⁶⁶⁷ It submits that the Appeals Chamber in FurundZija held that the mens rea of torture requires proof that the “act or omission must be intentional” and must aim at a prohibited purpose, but that there is no requirement that the prohibited purposes be realised, only that the act or omission was motivated, even in part, by one of the prohibited purposes.⁶⁶⁸

307. As to Emir Beganovic, the Appeals Chamber notes that the Trial Chamber found that he had been beaten on 10 June 1992 and also humiliated by Zoran Zigic the same day.⁶⁶⁹ Having established that Emir Beganovic had not been beaten by Zoran Zigic, the Trial Chamber concluded that Zigic was not guilty of torture but of cruel treatment in relation to this victim.⁶⁷⁰ The Appeals Chamber considers that this legal finding of cruel treatment is limited to Zigic’s liability. Despite the fact that the Trial Chamber did not explicitly state that the beatings perpetrated against Emir Beganovic amounted to torture, the Appeals Chamber is of the view that the Trial Chamber did find Kvocka criminally responsible for torture for the beatings of Emir Beganovic in light of the Trial Chamber’s general legal findings.⁶⁷¹

308. Turning to Kvocka’s argument that he neither wanted nor contributed to the infliction of severe pain or suffering, the Appeals Chamber has already determined that, in contributing to the daily operation and maintenance of the Omarska camp, Kvocka allowed the perpetuation of the system of ill-treatment, thereby furthering the common criminal purpose. As such, Kvocka contributed to the perpetration of the crimes committed when he was employed in the camp, including the crimes of torture . Further, the Trial Chamber correctly established that Kvocka knew the common criminal purpose of the Omarska camp and intended to participate in it, which encompassed the perpetration of the crimes. Therefore, Kvocka’s argument that he should not be found responsible since he had not wanted or contributed to the severe physical pain and psychological suffering of Witness AK, Asef Kapetanovic, Witness AJ and Emir Beganovic is rejected.

309. With regard to the alleged requirement of the participation of a public agent, the Appeals Chamber refers to its previous developments⁶⁷² and rejects Kvocka’s sub-ground of appeal.

     (iv) Torture of Avdo Kapetanovic and Asef Kapetanovic⁶⁷³

310. Kvocka asserts that he protected other detainees with his body when Avdo Kapetanovic and his son Asef Kapetanovic were shot dead on their arrival at the camp.⁶⁷⁴

311. The Appeals Chamber notes that Kvocka was not found guilty in respect of these two victims since the Trial Chamber did not make any factual findings in this regard.⁶⁷⁵
     F. Kvocka’s criminal liability for persecutions as a crime against humanity (ground of appeal 4)

312. The Appeals Chamber will now consider Kvocka’s fourth ground of appeal in which he claims that the Trial Chamber erred in finding him guilty on Count 1 of the Indictment, namely, persecutions as a crime against humanity.

313. Kvocka recalls that the Kupreskic Trial Chamber defined persecution as “the gross or blatant denial, on discriminatory grounds, of a fundamental right, laid down in international customary or treaty law, reaching the same level of gravity as the other acts prohibited in Article 5”⁶⁷⁶ and adds that in the Kordic and Cerkez Trial Judgement the Trial Chamber concluded that acts enumerated in other sub-clauses of Article 5 could constitute persecutions, as well as acts mentioned elsewhere in the Statute and those not cited in the Statute constituting deprivation of basic human rights.⁶⁷⁷ He concludes that acts of persecution must be of equal gravity or severity to other acts enumerated under Article 5 of the Statute.⁶⁷⁸ Accordingly, Kvocka proceeds to contest the conclusions of the Trial Chamber on each of the constitutive acts of persecution of which he has been found guilty.

314. As regards the general arguments raised by Kvocka in connection with the definition of the crime of persecutions, the Appeals Chamber stresses at the outset that it is unable to identify the error or errors alleged by Kvocka. Consequently, the Appeals Chamber declines to consider these general arguments and will deal with the specific errors Kvocka alleges regarding the criminal acts that constitute persecutions.
     1. Specific criminal acts that constitute persecutions as a crime against humanity

315. Before turning to Kvocka's specific allegations, the Appeals Chamber notes that he was not found guilty of persecutions in connection with all the incidents listed in Schedule A under count 1 of the Indictment. A careful reading of the factual findings of the Trial Chamber shows that Kvocka was found guilty under Article 7 (1) of the Statute of the persecutions committed against the following individuals listed in Schedule A: Witness A,⁶⁷⁹ Zuhra Hrnic,⁶⁸⁰ Witness AM,⁶⁸¹ Omer Mesan,⁶⁸² Sabit Murcehajic,⁶⁸³ Witness AI,⁶⁸⁴ Nusret Sivac⁶⁸⁵ and Sifeta Susic⁶⁸⁶ who were confined in inhumane conditions. The detainees Emir Beganovic,⁶⁸⁷ Abdulah Brkic,⁶⁸⁸ Muhamed Cehajic,⁶⁸⁹ Jasmin Hrnic,⁶⁹⁰ Witness AK,⁶⁹¹ Hase Icic,⁶⁹² Asef Kapetanovic,⁶⁹³ Emir Karabasic,⁶⁹⁴ Witness T,⁶⁹⁵ Azedin Oklopcic,⁶⁹⁶ Silvije Saric ⁶⁹⁷ and Witness AJ⁶⁹⁸ were confined in inhumane conditions and were victims of beatings. Witness J,⁶⁹⁹ Witness B,⁷⁰⁰ Witness F⁷⁰¹ and Witness K⁷⁰² were confined in inhumane conditions and victims were of rape or sexual violence. Ahil Dedic,⁷⁰³ Ismet Hodzic,⁷⁰⁴ Becir Medunjanin,⁷⁰⁵ Mehmedalija Nasic,⁷⁰⁶ were detained and killed in the camp. As to Ahil Dedic and Ismet Hodzic, the Appeals Chamber recalls that it reversed the Trial Chamber’s findings and found Kvocka not guilty of these two murders.⁷⁰⁷ For the same reasons which have led to this conclusion, the Appeals Chamber further vacates Kvocka’s conviction for persecutions (confinement in inhumane conditions ) in respect of Ahil Dedic and Ismet Hodzic.

316. No factual findings could be found in the Trial Judgement for the following individuals contained in Schedule A under count 1: Eno Alic, Refik Begulic, Witness AV, Zlata Bilajac, 12 men with the family name Garibovic, Husein Hodzic, Mehmed Hadzic, Fikret Harambasic, Safet Ilic, Sakib Jakupovic, Witness AU, Witness AF, Witness M, Ferid Mujcic, Witness AL, Muharem Nezirevic, Abdulah Puskar, Hanki Ramic and Reuf Travancic. The Appeals Chamber concludes that Kvocka has not been found guilty in respect of these individuals.

     (a) Harassment, humiliation and psychological abuse

317. Kvocka argues that acts of harassment, humiliation and psychological abuse do not constitute the crime of persecutions.⁷⁰⁸ He submits that, under Kupreskic,⁷⁰⁹ in order for an act to be held as persecution, it must be of equal gravity or severity as the criminal acts listed in Article 5 of the Statute, and that the acts in question do not rise to this standard.⁷¹⁰

318. The Prosecution responds that this submission does not have a factual or legal basis, and that the Trial Chamber correctly considered harassment, humiliation and psychological abuse as acts of persecution, as is supported by the Krnojelac Trial Judgement, the Blaskic Trial Judgement and the Aleksovski Appeal Judgement.⁷¹¹ It submits that those acts against Bosnian Muslims amounted to a gross or blatant denial of fundamental human rights, thus satisfying the legal criterion of seriousness.⁷¹²

319. Referring to the case-law of the Tribunal, the Trial Chamber defined the constitutive elements of the crime of persecution as follows: “(1) the occurrence of a discriminatory act or omission; (2) a basis for that act or omission founded on race, religion, or politics; and (3) the intent to infringe an individual’s enjoyment of a basic or fundamental right”⁷¹³ and, in more general terms, defined persecutions as “the gross or blatant denial, on discriminatory grounds, of a fundamental right, laid down in international customary or treaty law, reaching the same level of gravity as the other acts prohibited in Article 5”.⁷¹⁴

320. The Appeals Chamber finds no error in the constitutive elements identified by the Trial Chamber but prefers to adopt the wording of the Krnojelac Appeal Judgement, which was rendered after the delivery of the Trial Judgement in the present case and which it has endorsed in all its recent judgements:

     (…) the crime of persecution consists of an act or omission which:

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

     2. was carried out deliberately with the intention to discriminate on one of the listed grounds, specifically race, religion or politics (the mens rea).⁷¹⁵

321. The Appeals Chamber also notes that with respect to the actus reus of the crime of persecutions, the Trial Chamber rightly noted that the acts included in the crime of persecution, be they considered in combination or separately, are of the same gravity as the enumerated crimes in Article 5 of the Statute.⁷¹⁶ Kvocka does not in fact contest the standard of gravity but refers to it to show the Trial Chamber’s alleged error. The Appeals Chamber points out that to apply the standard of gravity, the acts must not be considered in isolation, but in context, by looking at their cumulative effect.⁷¹⁷

322. The Appeals Chamber will further determine whether the charges of harassment, humiliation and psychological abuse as established in this case were of sufficient gravity to constitute crimes of persecution under Article 5(h) of the Statute.

323. Harassment, humiliation and psychological abuse are not listed as such under Article 5 of the Statute nor do they constitute specific offences under other articles of the Statute. The Appeals Chamber notes however that Common Article 3(1)(c) of the Geneva Conventions prohibits “outrages upon personal dignity, in particular humiliating and degrading treatment”. The specific offence of outrages upon personal dignity also appears in Article 75(2)(b) of Additional Protocol I.⁷¹⁸ The Appeals Chamber also considers that acts of harassment and other psychological abuse, depending on the circumstances, can clearly be assimilated to violations of the “mental well-being of persons” prohibited under Article 75(2)(a) of Additional Protocol I.⁷¹⁹ The Appeals Chamber recalls incidentally that acts underlying persecution under Article 5(h) of the Statute need not be considered a crime in international law.

324. Contrary to Kvocka’s claim, the Trial Chamber endeavoured to show in what respect the acts of harassment, humiliation and psychological abuse committed in the camp reached the degree of gravity of the crimes against humanity explicitly listed in the Statute. The Trial Chamber argued as follows:

     (…) The conditions of detention prevailing in the camp – gross overcrowding in small rooms without ventilation, requiring the detainees to beg for water, and forcing them to relieve bodily functions in their clothes – were themselves a form of abuse, and were intended to harass, humiliate, and inflict mental harm on the detainees. The constant berating, demoralizing, and threatening of detainees, including the guards’ coercive demands for money from detainees, and the housing of detainees in lice-infected and cramped facilities were calculated by participants in the operation of the camp to inflict psychological harm upon detainees. Just as rape and forced nudity are recognized as crimes against humanity or genocide if they form part of an attack directed against a civilian population or if used as an instrument of the genocide, humiliating treatment that forms part of a discriminatory attack against a civilian population may, in combination with other crimes or, in extreme cases alone, similarly constitute persecution.

     The Trial Chamber is also satisfied that the horrendous conditions of detention and the demoralizing treatment of detainees in Omarska camp were sufficiently degrading and traumatizing to constitute per se an outrage upon personal dignity, which qualifies as persecution since it was clearly committed on discriminatory grounds.⁷²⁰

325. The Appeals Chamber has no doubt that, in the context in which they were commited and taking into account their cumulative effect, the acts of harassment, humiliation and psychological abuse ascertained by the Trial Chamber are acts which by their gravity constitute material elements of the crime of persecution. The Appeals Chamber finds the conclusion reached by the Trial Chamber reasonable. This ground of appeal is therefore dismissed.

     (b) Murder

326. Kvocka claims that the Trial Chamber erred in finding him guilty of murder as persecution with respect to Silvije Saric. He submits that the list of victims for Counts 1 to 3 is the same as that for Counts 4 and 5, only with the addition of Silvije Saric. The Indictment stated that Saric was killed on 20 June 1992, but, according to the Defence, his murder occurred between 20 and 30 July 1992, when the Appellant was not in the camp.⁷²¹ Kvocka submits that since the Prosecution accepts that he was not held responsible for the deaths of Suljo Ganic, “Okic”, Adbulah Puskar and Mehmedalija Sarajlic, he could not have been liable for the murder of Silvije Saric because the witnesses who testified about the murder of Abdulah Puskar stated that Silvije Saric and Abdulah Puskar were killed at the same time.⁷²² There is no response in this regard from the Prosecution.

327. On reading Schedule A of the Indictment,⁷²³ the Appeals Chamber notes that the name Silvije Saric does indeed appear on the Prosecution's list of victims of crimes of persecution, inhumane acts and outrages upon personal dignity with which Kvocka is charged (Counts 1 to 3). The Appeals Chamber points out, however, that it is stated that Silvije Saric was a victim of “confinement in inhumane conditions, beating and torture on the first floor of the administration building” and that murder is never mentioned. The Appeals Chamber also underlines that the name of Silvije Saric does not appear on the Prosecution’s list of victims of murder under Counts 4 to 5.⁷²⁴ The Appeals Chamber finally notes that, in its Judgement, the Trial Chamber did not enter a finding on the alleged murder of Silvije Saric but merely referred to the beating he may have suffered during his detention in Omarska camp.⁷²⁵ Even if the evidence tends to show that Silvije Saric could have been murdered during his detention in Omarska, the Appeals Chamber notes that Kvocka was not found guilty of the murder of Silvije Saric. The ground of appeal relating to the murder of Silvije Saric is therefore without merit and must accordingly be dismissed.

     (c) Torture

328. The Appeals Chamber refers to its previous discussion in this respect and recalls that Kvocka’s ground of appeal relating to torture was dismissed in its entirety.

     (d) Rape and sexual assault

329. Kvocka argues that the Prosecution did not prove beyond reasonable doubt that the alleged rapes and sexual assaults happened during his stay in the camp.⁷²⁶ Kvocka submits that the victims of rape and sexual assault as identified by the Prosecution were Witnesses A, F, J and K.⁷²⁷ He recalls the evidence that Witness A arrived at the Omarska camp on around 18 to 20 June 1992, Witness K arrived on 17 June, Witness F at the beginning of June and Witness J around 9 June,⁷²⁸ and that, during the proceedings, the Trial Chamber rejected the testimony of Witness A in regard to the alleged rapes and sexual assaults.⁷²⁹ Kvocka contends that he was dismissed from Omarska on 23 June 1992 and that he was absent from the camp from 2 to 6 June 1992 and from 16 to 19 June 1992.⁷³⁰

330. The Prosecution accepts that the witnesses arrived at the camp on the dates mentioned by Kvocka and that they did not provide conclusive evidence as to the dates on which the sexual assault and rapes occurred.⁷³¹ It submits that he should not have been found criminally liable in respect of these offences.⁷³² It submits further that the Trial Chamber’s finding that Kvocka was guilty of the crime of persecution under Count 1 should be reversed to the limited extent that it refers to “sexual assault and rape”, but that allowing this appeal to this limited extent should not affect the sentence imposed by the Trial Chamber.⁷³³

331. Kvocka opposes the Prosecution’s submission that dismissal of the charges of sexual assault and rape should not affect the imposed sentence.⁷³⁴ He submits that, as the charge of sexual assault and rape as persecution constituting a crime against humanity has been very severely punished in Furundzija and Kunarac, a dismissal of this charge should substantially affect his sentence.⁷³⁵

332. The Appeals Chamber notes again that, in its Judgement, the Trial Chamber stated that none of the accused would be found responsible for the crimes committed before the date of his arrival in the camp or after he left the camp.⁷³⁶ To this effect, the Trial Chamber established that Kvocka held a position in the camp during the period from about 29 May to 23 June 1992.⁷³⁷ Later, the Trial Chamber found that “the crimes alleged against Kvocka in the Amended Indictment were committed in Omarska during the time that he was employed in the camp”.⁷³⁸

333. The Appeals Chamber notes first that the parties concur on the fact that no conclusive evidence was provided by the Prosecution on the dates on which Witnesses F, J and K were raped and sexually assaulted. The Appeals Chamber then points out that, with the exception of the assaults committed by Nedeljko Grabovac against Witness J,⁷³⁹ the Trial Chamber did not enter in the Trial Judgement any finding as regards the dates or approximate dates on which these crimes were allegedly committed. In finding the accused liable for sexual violence the Trial Chamber refers to pages 5385 to 5387 of the transcripts.⁷⁴⁰ On the review thereof, the Appeals Chamber notes that the witness provides no date or approximate date for the acts of sexual violence committed against her, and that the Trial Chamber could not properly rely on this witness testimony to conclude that these crimes were committed during the time that Kvocka was employed in the camp.

334. The Appeals Chamber finds that the Trial Chamber erred in stating that rape and sexual assault with which Kvocka was charged in the Indictment were committed in Omarska during the time that he was employed there and, consequently, erred in convicting Kvocka of “persecution for … sexual assault and rape.”⁷⁴¹ The Appeals Chamber upholds this ground of appeal and quashes this conviction. The Appeals Chamber will consider whether the quashing of this conviction may impact on the sentence in the chapter on sentencing.

     (e) Confinement in inhumane conditions

335. Although the Trial Chamber found that confinement in inhumane conditions was punishable pursuant to Article 5 (e) and (i) of the Statute, Kvocka argues that it was impossible for him to influence the imprisonment or release of detainees, and that he should not have been held responsible on this charge.⁷⁴²

336. The Prosecution responds that Kvocka’s inability to release the detainees was irrelevant to his persecutory act in that the underlying act for which he is charged relates to the confinement of detainees in inhumane conditions and not their unlawful confinement.⁷⁴³ It argues that the Trial Chamber did not conclude that Kvocka should have released the detainees but concluded that he could have done more to mitigate the terrible conditions in the camp.⁷⁴⁴

337. In reply, Kvocka argues that since the Trial Chamber concluded that he was a member of the so-called internal security, and that members of this security service could not affect the quantity and quality of food, accommodation conditions and medical treatment, he was not able to mitigate conditions in the camp.⁷⁴⁵ He submits that the Prosecution did not prove beyond any reasonable doubt that he could have done more to mitigate the terrible conditions in the camp.⁷⁴⁶ He argues that members of extraordinary security were not authorised to evaluate the detention conditions, as their only duties were to provide security. They could not affect decisions on arrests, conduct investigations or file criminal charges.⁷⁴⁷

338. When assessing the responsibility of an accused for crimes committed as part of a joint criminal enterprise, it is not a matter of determining what the accused could have done but what he did do to contribute to the joint criminal enterprise . The Appeals Chamber has upheld the Trial Chamber’s finding that Kvocka was criminally responsible as a co-perpetrator of the crimes committed as part of the joint criminal enterprise in Omarska camp during the time when he was employed there. That Kvocka was unable to prevent certain crimes is of no consequence since his contribution to the joint criminal enterprise encompassing those crimes has been established. In this sense, the arguments put forward by Kvocka are bound to fail. The Appeals Chamber dismisses this ground of appeal.

     (f) Conclusion

339. For the foregoing reasons, the Appeals Chamber upholds Kvocka’s sub-ground of appeal on rape and sexual assault and dismisses his other sub-grounds of appeal. The Appeals Chamber stresses that the Trial Chamber’s error with regard to rape and sexual assault is not liable to invalidate the Trial Judgement and that the impact it may have on sentencing will be considered in the relevant chapter.
     2. Kvocka’s mens rea for persecutions as a crime against humanity

340. Kvocka argues that the Trial Chamber erred in convicting him for persecutions as the Prosecution did not prove beyond reasonable doubt either that he shared the aim of the discriminatory policy or that he possessed the necessary discriminatory intent.⁷⁴⁸

     (a) Discriminatory policy

341. Kvocka submits that, in Kordic and Cerkez, the Trial Chamber held that the mens rea for the crime of persecution was proved by the fact that the accused shared the aim of the discriminatory policy, but that, in the present case, the Prosecution did not prove that he shared that aim, while, on the contrary, he associated closely with non-Serbs.⁷⁴⁹ The Prosecution submits that there is no requirement that a discriminatory policy existed or that, if it did, the accused took part in the formulation of such a discriminatory policy, as shown by the Kunarac Appeal Judgement.⁷⁵⁰ In his Reply Brief, Kvocka accepts that there is no requirement that a discriminatory policy existed or that the accused took part in the formulation of such a policy and submits that this subsection of his ground of appeal does not need to be considered. ⁷⁵¹

342. As a result, the Appeals Chamber declines to consider this sub-ground of appeal.

     (b) Discriminatory intent

343. Kvocka agrees with the Trial Chamber’s finding that discrimination was the main feature that distinguished the crime of persecution from other crimes against humanity, and that discrimination must be based on political, racial or religious grounds.⁷⁵² He also concurs that persecutions can only be committed with direct intent⁷⁵³ and that persons suspected of sympathising with non-Serbs can also be responsible for persecutions.⁷⁵⁴ However, Kvocka submits that he did not have the discriminatory intent for persecutions for political and religious reasons.⁷⁵⁵ He points out that he is married to a Bosnian Muslim and had close association with non-Serbs ;⁷⁵⁶ that he was a member of the moderate Reformist Party of Ante Markovic and that he was dismissed from duty at the Omarska camp after being considered a traitor and suspected of supporting Bosnian Muslims.⁷⁵⁷

344. The Prosecution responds that the Trial Chamber held that Kvocka had the requisite intent for two reasons. First, virtually all the crimes were committed against the non-Serb detainees of the camp, and thus the acts or omissions were committed on discriminatory grounds. Secondly, there was clear evidence that Kvocka shared the discriminatory intent of the perpetrators, as he knowingly participated in a joint criminal enterprise.⁷⁵⁸ The Prosecution argues that his association with the Muslim community did not detract from the finding that he shared the discriminatory intent of those who physically perpetrated the crimes, that his acts of benevolence cannot obliterate his criminal liability, and that it was open to the Trial Chamber to conclude that such acts could not constitute significant mitigation.⁷⁵⁹

345. In reply, Kvocka submits that a discriminatory intent must relate to a specific act for which the accused is charged, as the definition of persecution demands that the act or omission be factually persecutory.⁷⁶⁰ Kvocka submits that his association with the Muslim community, his political affiliation and his duty as a professional policeman are facts that disprove the existence of a discriminatory intent.⁷⁶¹ He asserts that the Trial Chamber founded its finding of his discriminatory intent on the presumption that his stay in the camp was voluntary, rather than on the evidence.⁷⁶²

346. The Appeals Chamber stresses that the parties concur that discriminatory intent is required in order to prove a crime of persecution. In addition to his argument about an absence of discriminatory intent on his part, Kvocka nevertheless seems to contend that the Trial Chamber erred by not systematically analysing the discriminatory nature of the crimes committed in Omarska camp. The Appeals Chamber recalls that the Trial Chamber established the discriminatory nature of the joint criminal enterprise encompassing the crimes committed in Omarska camp, and considers that Kvocka fails to prove that the Trial Chamber erred.

347. The Appeals Chamber concurs with the Trial Chamber’s reasonable and cogent finding that the crimes committed in the camp were committed with the intent to discriminate against and subjugate the non-Serb detainees,⁷⁶³ the ultimate aim of the joint criminal enterprise. Regarding Kvocka, the Trial Chamber found that he had the intent to discriminate against the non-Serbs detained in the camp.⁷⁶⁴ In this respect, the Appeals Chamber recalls that, on the question of Kvocka’s mens rea, it concluded that the Trial Chamber did not err when it found, based on the evidence before it, that Kvocka had the intent to contribute to the joint criminal enterprise of the Omarska camp. The Appeals Chamber is of the opinion that, in the context of the case, the intent to contribute to the joint criminal enterprise and discriminatory intent is one and the same thing. The same conclusion must then be reached when determining whether the facts of the case could have led a reasonable trier of fact to conclude that Kvocka shared the discriminatory intent of the perpetrators of the crimes committed in furtherance of the joint criminal enterprise. Hence, the Appeals Chamber considers that the Trial Chamber did not commit an error in its conclusion set out in paragraph 413(e) of the Trial Judgement that Kvocka had the required discriminatory intent.
     IV. SEPARATE GROUNDS OF APPEAL OF RADIC

348. In his Appeal Brief, Radic has identified five grounds of appeal. The second ground of appeal and parts of his first ground have been discussed above as they overlapped with grounds advanced by other appellants.⁷⁶⁵ As the remaining grounds of appeal are sometimes repetitive, and sometimes raise parallel issues under different headings, the Appeals Chamber has partially rearranged the order in which they are addressed for ease of reference. Radic’s fifth ground of appeal relates to the sentence, and will be discussed in section VII of this Judgement.
     A. The right to a fair and impartial trial (ground of appeal 1)

349. In his first ground of appeal, Radic contends that he was denied the right to a fair and impartial trial. He advances three sub-grounds of appeal: (i) he was not adequately informed about the charges against him because the mode of criminal liability was not pleaded in the Indictment; (ii) the Trial Chamber did not make findings with regard to the Schedules; and (iii) the Trial Chamber violated Rule 93 of the Rules when using certain evidence to establish a consistent pattern of conduct. The first sub-ground has been discussed already;⁷⁶⁶ the Appeals Chamber now turns to the remaining two.
     1. Schedules

350. Radic submits inter alia that the Trial Chamber violated his right to a fair and impartial trial by failing to make factual findings in respect to each incident listed in the Schedules.⁷⁶⁷ The Appeals Chamber has already discussed the merits of this argument;⁷⁶⁸ it turns now to an analysis of the Trial Judgement to determine what factual findings the Trial Chamber actually made to support Radic’s convictions.

351. Radic was not found guilty of persecution, murder and torture in respect of all the incidents listed in Schedule C. A review of the factual findings made by the Trial Chamber throughout the Trial Judgement shows that Radic has been found guilty, pursuant to Article 7(1) of the Statute, of persecution under count 1 of the Indictment in respect of the following victims contained in Schedule C: Mirsad Alisic,⁷⁶⁹ Zuhra Hrnic,⁷⁷⁰ Witness AM,⁷⁷¹ Zihad Mahmuljin,⁷⁷² Omer Mesan,⁷⁷³ Sabit Murcehajic,⁷⁷⁴ Witness AI,⁷⁷⁵ Nusret Sivac,⁷⁷⁶ Sifeta Susic⁷⁷⁷ and Ermin Strikovic ⁷⁷⁸ who were confined in inhumane conditions. The detainees Emir Beganovic,⁷⁷⁹ Zlatan Besirevic,⁷⁸⁰ Abdulah Brkic,⁷⁸¹ Witness Y,⁷⁸² Muhamed Cehajic,⁷⁸³ Jasmin Hrnic,⁷⁸⁴ Witness AK,⁷⁸⁵ Hase Icic,⁷⁸⁶ Asef Kapetanovic,⁷⁸⁷ Emir Karabasic,⁷⁸⁸ Gordan Kardum,⁷⁸⁹ Witness T,⁷⁹⁰ Azedin Oklopcic,⁷⁹¹ Silvije Saric⁷⁹² and Witness AJ⁷⁹³ were victims of beatings. Witness J,⁷⁹⁴ Witness B,⁷⁹⁵ Witness F⁷⁹⁶ and Witness K⁷⁹⁷ were victims of sexual violence. Ahil Dedic,⁷⁹⁸ ( FNU) Gavranovic,⁷⁹⁹ Riza HadZalic,⁸⁰⁰ Becir Medunjanin,⁸⁰¹ Mehmedalija Nasic,⁸⁰² Safet Ramadanovic ⁸⁰³ and Asmir Crnalic⁸⁰⁴ were detained and killed in the camp.

352. As to count 5 of the Indictment, a review of the factual findings made by the Trial Chamber throughout the Trial Judgement shows that Radic has been found guilty, pursuant to Article 7(1) of the Statute, of murder under count 5 of the Indictment in respect of the following victims contained in Schedule C: Ahil Dedic,⁸⁰⁵ (FNU) Gavranovic,⁸⁰⁶ Riza HadZalic,⁸⁰⁷ Becir Medunjanin,⁸⁰⁸ Mehmedalija Nasic⁸⁰⁹ and Safet Radamanovic.⁸¹⁰ The Trial Chamber found that Asmir Crnalic was shot dead⁸¹¹ but his name is listed only under count 1 of the Indictment (persecution),⁸¹² not under count 5 (murder). As far as Jasmin Hrnic is concerned, the Trial Chamber found that he was detained at Omarska and beaten up,⁸¹³ but the Appeals Chamber cannot identify a finding of the Trial Chamber as to the death of Jasmin Hrnic. Similarly, there is no finding by the Trial Chamber regarding the alleged death of Silvije Saric as a result of beatings.⁸¹⁴ With regard to Emir Karabasic, the Trial Chamber found that he collapsed after a severe beating; but nothing in the Trial Judgement indicates that he died as a result of this beating.⁸¹⁵ Of 22 murders listed in Schedule C, Radic has been found guilty of murder in six cases.

353. As to count 9 of the Indictment, a review of the factual findings made by the Trial Chamber throughout the Trial Judgement shows that Radic has been found guilty, pursuant to Article 7(1) of the Statute, of torture under count 9 of the following victims contained in Schedule C: Abdulah Brkic,⁸¹⁶ Slavko Ecimovic,⁸¹⁷ Riza HadZalic,⁸¹⁸ Hase Icic⁸¹⁹ and Witness T.⁸²⁰ Of 15 incidents of torture or cruel treatment listed in Schedule C, Radic has been found guilty of torture under count 9 of the Indictment in five.

354. Finally, Radic was also charged with rape and sexual assault against female prisoners, including Witnesses A, K, E, F, J, L and Zlata Cikota.⁸²¹ The Appeals Chamber notes that an entire section of the Trial Judgement covers Radic’s personal involvement in sexual violence.⁸²² Factual findings have been reached by the Trial Chamber for the following victims listed in the relevant section of the body of the Indictment or Schedule C: Witnesses K,⁸²³ Zlata Cikota,⁸²⁴ Witness F⁸²⁵ and J.⁸²⁶ With regard to Witness A, the Trial Chamber noted that she testified that Radic had raped her, but that the Trial Chamber could not rely on her testimony.⁸²⁷

355. No factual findings at all could be found in the Trial Judgement for the following individuals contained in Schedule C: Abdulah Puskar, Samir Avdic, Witness AV, Ivan Hrvat, Ferid Mujcic, Mustafa Balic, Eno Alic, Velid Badnjevic, Hilmaja Balic, Said Besic, Zlata Bilajac, Amer Ceric, Witness X, Dedo and Edin Crnalic, Husein Crnkic, Durat Dautovic, Midhet Fazlic, Suljo Ganic, Samir HodZic, Dalija Hrnic, Irvan Hrvat, Maho Habibovic, Fikret Harambasic, Witness AU, Emir Karagic, Witness M, Eso Mehmedagic, Ibrahim Mesinovic, Midhet Mujkanovic, Witness AL, Muharem Nezirevic, Hanki Ramic, Mehmedalija Sarajlic, Enes Sahbaz, Mevludin Sejmenovic, Sefik Sivac, Miro Soljaja and Reuf Travancic.

356. Contrary to Radic’s allegations, the Trial Chamber did not find him guilty of certain crimes under counts of the Indictment without establishing the facts underlying each of these counts. Even if the Trial Chamber made an error by failing to list the incidents established beyond reasonable doubt underlying each crime for which Radic was found guilty, this error does not invalidate the Trial Judgement, as explained above.⁸²⁸ This ground of appeal therefore fails.
     2. Consistent pattern of conduct

357. As a separate sub-ground under his first ground of appeal, Radic challenges the Trial Chamber’s use of the testimony of Nedzija Fazlic and Witness AT as evidence of a consistent pattern of conduct, pursuant to Rule 93. Radic asserts that, when the Trial Chamber used the testimony of Witness AT to establish a consistent pattern of conduct pursuant to Rule 93, it violated the Rules.⁸²⁹ According to Radic, the Trial Chamber also violated Rule 93 (B), which provides that the Prosecutor shall, pursuant to Rule 66, disclose to the Defence any evidence pointing to a consistent pattern of conduct, which the Prosecution never did with regard to Witness AT.⁸³⁰ Radic submits that since the Prosecution did not request the application of Rule 93, the Trial Chamber should not have applied it on its own.⁸³¹

358. The Prosecution responds that Rule 93 embodies a principle similar to that of “similar fact evidence” recognized in many common law jurisdictions and that, under that principle, the evidence of other crimes showing special knowledge, opportunity, or modus operandi, need not be identified in the Indictment.⁸³² It notes that the Kupreskic et al. Appeal Judgement held that disclosure of Rule 93 evidence pursuant to Rule 66 was not sufficient in light of the version of Rule 65ter adopted in April 2001. When, however, such evidence had been disclosed before this version of Rule 65ter entered into force (as in Kupreskic itself), it could remain on the record. The Prosecution states that this applies to the present case.⁸³³

359. In the present case, the Trial Chamber found evidence admissible under Rule 93 in two instances. The Trial Chamber found reliable the testimony of Nedzija Fazlic, according to which Radic had promised to help her in exchange for sexual favours, and of Witness AT, who testified that Radic forced her once to have sexual intercourse with him. As no mention was made of these two victims in the Indictment, the Trial Chamber did not consider them when determining the guilt of Radic. However, it found that their testimony could assist in establishing a consistent pattern of conduct.⁸³⁴

360. The Appeals Chamber notes that the Trial Chamber never referred to a consistent pattern of conduct when assessing the evidence on which it based Radic’s conviction. It appears that the Trial Chamber, although satisfied that a consistent pattern of conduct of Radic had been established, made no use of this pattern of conduct when assessing the evidence for the particular offences of which Radic was convicted. Radic has not identified to what extent relief was sought when submitting this sub-ground of appeal. He did not demonstrate that the removal from the record of the evidence in question would have had any impact on the Trial Judgement. The Appeals Chamber, therefore, finds that he failed to identify an error on the part of the Trial Chamber.
     B. Radic’s criminal liability for the crime of persecutions (ground of appeal 3)

361. Under this ground of appeal, Radic challenges his conviction for persecution as a crime against humanity under count 1 of the Indictment.⁸³⁵
     1. The finding that the underlying crimes were discriminatory

362. Radic submits that the Trial Chamber erred in concluding that a criminal act can be discriminatory if the perpetrator acts with discriminatory intent only. In his view, there must be discriminatory consequences to hold an act discriminatory .⁸³⁶ Radic also submits that it is not sufficient to establish that he was aware of his acts being discriminatory, but that he must have consciously intended to discriminate.⁸³⁷ The Prosecution responds that Radic has not shown that the Trial Chamber erred by inferring his discriminatory intent from his conduct, and from the fact that he participated knowingly and wilfully in a joint criminal enterprise which comprised a system of maltreatment in which detainees were persecuted on discriminatory grounds.⁸³⁸

363. The Trial Chamber found that all the detainees in the Omarska camp were non -Serbs or persons suspected of sympathizing with non-Serbs. Virtually all offences were committed against non-Serbs. The establishment of the camp formed only one element of a common plan to drive the non-Serb population of Prijedor out of the territory.⁸³⁹ Radic does not challenge these findings, nor does he dispute that the crimes committed in the Omarska camp, for which he was convicted under this count, deny or infringe fundamental rights of the victims. In the present case, the Appeals Chamber found that the Trial Chamber correctly defined the crime of persecution.⁸⁴⁰ Under the given circumstances, there is no doubt that the underlying crimes were committed upon discriminatory grounds, and had discriminatory effects.
     2. Radic’s discriminatory intent

364. Radic contests the Trial Chamber’s conclusion that the individual discriminatory intent required for the crime of persecution could be inferred from the discriminatory character of the Omarska camp.⁸⁴¹ Radic argues that the existence of the Omarska camp cannot per se establish his discriminatory intent because the Krnojelac Trial Chamber held that such intent of the accused needed to be established for every individual act.⁸⁴² Radic argues that the Trial Chamber’s failure to establish his discriminatory intent without further evidence, and the “automatic” attribution of discriminatory intent violated the rights of the accused.⁸⁴³ Further, Radic refers to the case of Georgiadis v. Greece⁸⁴⁴ of the European Court of Human Rights to demonstrate that a court of law must “give much more specific reason” when its finding is of “decisive importance for appellant’s rights” and when the findings include “assessment of factual issues”.⁸⁴⁵

365. The Prosecution submits that the Trial Chamber’s articulation of the mens rea for persecution is legally beyond reproach,⁸⁴⁶ that a trier of fact is permitted to infer an accused’s discriminatory intent from many factors including the conduct itself and the context in which it occurs.⁸⁴⁷ In the view of the Prosecution, the Trial Chamber was correct in concluding that a participant in a joint criminal enterprise must have carried out acts that substantially assisted or significantly effected the furtherance of the goals of the enterprise, with the knowledge that these acts facilitated the crimes committed through the enterprise.⁸⁴⁸

366. The Appeals Chamber agrees with Radic that the discriminatory intent of crimes cannot be inferred directly from the general discriminatory nature of an attack characterized as a crime against humanity. However, the discriminatory intent may be inferred from the context of the attack, provided it is substantiated by the surrounding circumstances of the crime.⁸⁴⁹ Accordingly, the Appeals Chamber found in the case Prosecutor v. Krnojelac that, when beatings were inflicted only on the non-Serb detainees in a prison, it was reasonable to conclude that these beatings were committed because of the political or religious affiliation of the victims, and that these acts were committed with the requisite discriminatory intent.⁸⁵⁰ In the present case, it appears that almost all the detainees in the camp belonged to the non-Serb group. It was reasonable to conclude that the reason for their detention was their membership in this group and therefore of a discriminatory nature.

367. Radic argues that he did not share the goal of the discriminatory policy, but that he reluctantly served in the camp only because of the explicit orders of his superior. The Appeals Chamber recalls that discriminatory intent must be distinguished from the motive for doing so.⁸⁵¹ The Trial Chamber inferred Radic’s discriminatory intent from his knowledge of the persecutory nature of the crimes, and his knowing participation in the system of persecution pervading Omarska camp.⁸⁵² The Appeals Chamber finds that it was reasonable to reach the conclusion that Radic acted with discriminatory intent from the facts of the case, regardless of his personal motives for doing so. His personal motives may become relevant at the sentencing stage, but not as to the finding of his criminal intent.

368. The Appeals Chamber understands that Radic, by his reference to the case of Georgiadis v. Greece⁸⁵³ of the European Court of Human Rights, contends that the Trial Chamber failed to give sufficient reasons for his conviction. The Appeals Chamber recalls that every accused has the right to a reasoned opinion under Article 23 of the Statute and Rule 98 ter (C).⁸⁵⁴ However, the Trial Chamber is not under the obligation to justify its findings in relation to every submission made during trial. It is therefore necessary for any appellant claiming an error of law due to the lack of a reasoned opinion to identify the specific issues, factual findings or arguments which he submits the Trial Chamber omitted to address and to explain why this omission invalidated the decision.⁸⁵⁵ The Appeals Chamber finds that the Trial Chamber’s findings as to Radic’s discriminatory intent meet this standard, and that Radic has failed to identify any particular omission on the part of the Trial Chamber.
     3. The sexual offences did not involve discrimination

369. Radic also asserts that the acts of rape and sexual violence charged do not involve discrimination based on religion, ethnicity, or political belief.⁸⁵⁶ He submits that the Trial Chamber found personal motives in the acts of rape as persecution, but failed to establish what constituted his discriminatory intent.⁸⁵⁷

370. The Appeals Chamber finds that Radic, again, does not distinguish between intent and motive. The Trial Chamber found that the sexual violence was directed only against women of non-Serb origin,⁸⁵⁸ and Radic does not contest this finding. It was, for the reasons set out in the preceding section, reasonable to conclude that Radic acted with the required discriminatory intent, notwithstanding his personal motives for committing these acts.
     C. Alleged factual errors (ground of appeal 4)

371. In his fourth ground of appeal, Radic challenges various factual findings of the Trial Chamber.
     1. The position of Radic within the Omarska camp

     (a) Assessment of witnesses’ testimony

372. Radic submits that the Trial Chamber did not establish beyond reasonable doubt that he was the shift leader of guards and held a position of authority.⁸⁵⁹ He relies on the testimony of Witnesses B, AJ, AK, AI and Mirsad Alisic to argue that none of the witnesses was certain that he had authority over other guards.⁸⁶⁰ Radic argues that the Trial Chamber quoted the evidence given by Witnesses AK and B but that it left out the part of the testimony in which Witness B stated that “not all the guards would have obeyed Radic”.⁸⁶¹ In addition, Radic argues that the Trial Chamber did not take into consideration the evidence given by several witnesses testifying to the effect that he was not in a position of authority and not different from other guards,⁸⁶² and that the Trial Chamber did not consider the affidavits of a number of witnesses who had been guards at the time when Radic was in Omarska camp.⁸⁶³

373. The Prosecution responds that the partial extracts of the evidence presented by Radic in his Appeal Brief are not representative of the extensive evidence before the Trial Chamber.⁸⁶⁴ It points out that Radic had already highlighted in his Final Trial Brief the excerpts of evidence upon which he now relies in his Appeal Brief.⁸⁶⁵ Furthermore, the Prosecution submits that nothing in the Trial Judgement suggests that the Trial Chamber did not adequately consider the evidence given by Witnesses DC/2, DC/3 and Starkevic,⁸⁶⁶ as references to their evidence are included in the Judgement.⁸⁶⁷

374. The Appeals Chamber notes that the Trial Chamber relied on the evidence given by a large number of witnesses to establish Radic’s position in the camp.⁸⁶⁸ Radic does not challenge the testimony given by these witnesses, with the exception of Witness B. Witness B’s testimony was, in Radic’s view, misinterpreted by the Trial Chamber, because she had stated that not all the guards obeyed Radic.⁸⁶⁹ A close reading of Witness B’s testimony reveals that she explicitly called Radic a shift leader, and positively stated that he had authority over the guards, and that most of them obeyed him:

     Q. From what you saw during your time in the camp, did you believe that Mladjo Radic did have the authority to control the conduct of the guards on his shift?

     A. Absolutely.

     Q. In your opinion, if he had wanted to, could he have prevented beatings that day ?

     A. Well, if he has the duty of being a shift leader, then I also think he has the authority to prevent something from being done as well, or to make a report of it to the command.

     Q. Based on what you observed in the camp, if he had given such an order, that is, not to beat the prisoners, do you believe the guards on his shift would have obeyed him?

     A. I hope that most of them would, but not all of them. Most of them would have listened to him.⁸⁷⁰

     Considering that the Trial Chamber never found that all the guards obeyed Radic, or that he had absolute and unchallenged authority in the camp, the Appeals Chamber finds his reliance on Witness B’s testimony misconceived.

375. With regard to Witness DC/3 and Branko Starkevic, the Appeals Chamber notes that their testimony is at least contradictory as to their knowledge about Radic’s position in the camp. When asked if Radic was in charge of a shift, Witness DC/3 answered that he could not tell about this, because he had no access to that type of information.⁸⁷¹ Branko Starkevic said that he had seen Radic two or three times in the camp. When he was asked whether he could conclude on those occasions if Radic had any position in the camp, he answered in the negative.⁸⁷² With regard to Radic’s argument that the Trial Chamber failed to consider the untested affidavits of witnesses who had been guards in Omarska camp on Radic’s shift, the Appeals Chamber recalls that it is primarily in the Trial Chamber’s discretion to determine what weight to give to which evidence.⁸⁷³ The Appeals Chamber concludes that Radic seeks to substitute his own evaluation of the evidence for that of the Trial Chamber. His evaluation is not accepted.

     (b) Radic’s assistance to detainees

376. Radic further objects to the conclusion of the Trial Chamber that he held a position of authority in the camp because he offered assistance to detainees “when it was possible”,⁸⁷⁴ relying on the evidence of Witness B, Ermin Strikovic and Witness E.⁸⁷⁵ In addition, he refers to the testimony of several Defence witnesses to show that he helped detainees by bringing them clothes, food, and medication, but that he had to do so secretly.⁸⁷⁶ The Prosecution argues that it was not unreasonable for the Trial Chamber to infer from the evidence of Radic’s assistance or protection of certain detainees that he could do so because he had some degree of power and authority in the camp, and that Radic has not shown that no reasonable tribunal could have drawn this inference from the evidence.⁸⁷⁷

377. A close reading of the evidence on which Radic relies reveals that it does not support his submission that he offered assistance to detainees not from a position of authority, but had to do so in secret. For example, Radic submits that Witness DC/1 stated that Radic had no influence in the camp. A close reading of Witness DC/1’s testimony, however, reveals that Radic did not tell Witness DC/1 that he did not have any influence at all in the camp, but that he was not in the position to release the witness.⁸⁷⁸ The Trial Chamber never found that as a guard shift leader Radic had the authority to release detainees, but that he was able to stop abuses if he chose to do so.⁸⁷⁹ For the same reason, Radic’s argument that Witness DC/6’s testimony showed that the policemen did not obey him⁸⁸⁰ is misconceived. Witness DC/6 recounted that he was brought to the Omarska camp. There he met Radic, who, after checking his name, told the policemen who had brought Witness DC/6 to the camp to take him back to Ljubija. The policemen left the camp with the witness, but went to Prijedor and asked for further instructions at the police station. Finally, Witness DC/6 was taken to the Keraterm camp.⁸⁸¹ These events only show that Radic’s authority could be overruled by orders from the Prijedor Police Station. This is not inconsistent with the Trial Chamber’s findings, which had found that the camp had been established by the order of the chief of the Prijedor Public Security Station.⁸⁸²

378. The Appeals Chamber finds that there is no conclusive evidence showing that Radic had to act clandestinely when assisting detainees. Witness DC/4 had only heard so from another person; she herself had not been detained in Omarska camp.⁸⁸³ Radic misstates the testimony of Witness DC/5 when submitting that the witness said that he had been given bread by Radic, but that another guard took it away, swearing.⁸⁸⁴ Witness DC/5 in fact stated that the guard took away the bread given to the witness by Radic, but, at the same time, the guard threatened the witness not to tell Radic about the guard’s behaviour.⁸⁸⁵ Contrary to Radic’s assertion, this evidence shows that he had some authority over the guards, and that they were at least concerned about his reactions when they maltreated a detainee assisted by him. Moreover, it would not be improbable for an official in a prison camp, even one holding a position of authority, to keep secret any favours granted to selected detainees.

379. The Appeals Chamber, therefore, finds that a reasonable trier of fact could conclude from the assistance which Radic offered to selected detainees that he held a position of authority and influence in the camp.

     (c) Radic had no effective control over the guards in “Krkan’s shift”

380. Radic submits that there was no evidence to show that he had “mechanisms to impose his authority”⁸⁸⁶ and was different from other guards in his shift.⁸⁸⁷ He claims that the Trial Chamber’s finding that he was not responsible under Article 7(3) of the Statute, because it was unclear whether he exercised effective control over the guards, was inconsistent with the finding that he held a position of authority.⁸⁸⁸ He further maintains that the Chamber’s finding that anarchy prevailed in the camp supports his claim.⁸⁸⁹ In addition, he submits that the Trial Chamber erred in concluding from the fact that his shift was called “Krkan’s shift” that he was actually the shift leader.⁸⁹⁰ Finally, Radic disputes the finding of the Trial Chamber that he was responsible for the crimes committed by Zigic, pointing out that the Trial Chamber also found that Zigic did not belong to the camp personnel. He argues that this finding is inconsistent with the ruling in the Sikirica Sentencing Judgement that a guard shift leader was not responsible for persons entering the camp to harass detainees.⁸⁹¹

381. The Prosecution responds that Radic misstated the Trial Chamber’s point regarding his Article 7(3) liability, since the Chamber found it unnecessary to rule on the point of effective control.⁸⁹² In its view, the finding that he was a shift leader is not inconsistent with the above decision by the Trial Chamber, as a person exercising significant authority is not necessarily a superior in terms of Article 7(3).⁸⁹³ The Trial Chamber also considered the fact that his shift was called “Krkan’s shift ” and the argument that this was so because Radic was well known to many detainees and guards.⁸⁹⁴ In conclusion, the Prosecution argues that Radic has not shown why the Trial Chamber was unreasonable in finding him to be a shift leader with significant authority over other guards on his shift.⁸⁹⁵

382. With regard to Radic’s argument that the Trial Chamber’s finding that he was not responsible under Article 7(3) of the Statute is inconsistent with the finding that he held a position of authority, the Appeals Chamber refers to the discussion of Kvocka’s third ground of appeal and recalls that not every position of authority and influence necessarily leads to superior responsibility under Article 7(3) of the Statute.⁸⁹⁶

383. Equally without merit is Radic’s argument that he cannot be held responsible for crimes he was unable to prevent because of the chaotic situation in the camp. The Trial Chamber found that the Omarska camp functioned as a joint criminal enterprise,⁸⁹⁷ and that Radic knowingly and substantially contributed to the functioning of the camp.⁸⁹⁸ Once the Trial Chamber had established these facts, the conclusion that Radic was responsible for the crimes committed during his participation in the joint criminal enterprise was correct, regardless of his power to prevent individual crimes. Unlike the position under Article 7(3) of the Statute, responsibility for participation in a joint criminal enterprise under Article 7(1) of the Statute does not require proof that the perpetrator has the authority to prevent the crimes.⁸⁹⁹ Radic is responsible not because he did not prevent the crimes in question, but because he supported and furthered a criminal enterprise which allowed individuals to maltreat detainees at will.

384. With regard to Radic’s argument as to why his shift was called “Krkan’s”, the Appeals Chamber notes that the Trial Chamber based its conclusion that Radic held a position of authority in the camp on a number of circumstances.⁹⁰⁰ The fact that the shift was called “Krkan’s shift”, Krkan being the nickname of Radic, was not among them. In fact, the Trial Chamber explicitly noted that, according to Radic, his shift was called “Krkan’s” because detainees knew him from before the conflict.⁹⁰¹ His argument that the Trial Chamber did not consider the testimony of witnesses explaining why this shift was called “Krkan’s” ⁹⁰² is therefore irrelevant.

385. Radic’s argument that the Trial Chamber’s findings are inconsistent with the Sikirica et al. Sentencing Judgement is inapposite. In the Sikirica et al. Sentencing Judgement, the Trial Chamber noted that the Prosecution and the accused Damir Dosen agreed that it was not always possible for Damir Dosen to prevent other persons, not on the staff, from entering the Keraterm camp at will and mistreating the detainees.⁹⁰³ However, nothing in that judgement indicates that the Trial Chamber did not hold Damir Dosen responsible for the acts committed by these persons, even if he could not prevent them from entering the camp.⁹⁰⁴

386. In summary, the Appeals Chamber concludes that the Trial Chamber based its finding as to Radic’s position and authority in the camp on a number of circumstances which were supported by substantive evidence. Radic has failed to show that no reasonable trier of fact could have arrived at this finding. This sub-ground of appeal fails.
     2. Crimes committed by guards on Radic’s shift

387. Radic submits that the Trial Chamber erroneously concluded that he was responsible for the maltreatment and intimidation of detainees including murder and torture in the Omarska camp, and that his failure to intervene to prevent crimes committed during his shift indicated his approval of the crimes.⁹⁰⁵ Radic argues that this conclusion was based on the testimony of Hase Icic and Mirsad Alisic.⁹⁰⁶ He submits that the testimony of Hase Icic was contradictory. He argues that Hase Icic’s testimony that he met Radic in the morning and then again at around 10 p.m. or 11 p.m. is inconsistent with the Trial Chamber’s finding that the change of guards took place at 7 a.m. and 7 p.m.⁹⁰⁷ Radic further argues that the testimony of Mirsad Alisic, along with the testimony of Witnesses AI and B, showed that the three guards who were in the same shift with Radic – Predojevic, Popovic and Paspalj – beat the detainees on their own initiative.⁹⁰⁸ Further, he argues that the Trial Chamber’s finding that he failed to intervene and that his passive behaviour was understood as approval and encouragement is undermined by its finding that he did not have effective control over the guards.⁹⁰⁹ Therefore, he concludes, he cannot be held responsible for the crimes committed by these guards.⁹¹⁰

388. The Appeals Chamber finds that the alleged contradiction in Hase Icic’s testimony is only minor and did not prevent a reasonable trier of fact from relying on the testimony of this witness.

389. Radic’s argument that he cannot be held responsible for the crimes committed by the guards of his shift because he was unable to prevent these crimes has already been discussed.⁹¹¹ In addition, the Appeals Chamber notes that Radic does not argue that he ever actually tried to prevent the guards on his shift from committing crimes. It was, therefore, open for a reasonable trier of fact to conclude that Radic’s failure to intervene encouraged the commission of crimes.
     3. Radic’s knowledge of camp conditions and crimes

390. The Trial Chamber noted that Radic had maintained that he had never seen signs of mistreatment on any detainees, though he admitted in cross-examination that he had seen such signs on prisoners leaving the interrogation rooms.⁹¹² The Trial Chamber, based on the evidence given by a large number of witnesses, “ fully and forcefully” rejected Radic’s claim that he did not notice evidence of any abuses committed in the camp.⁹¹³

391. Radic contests the Trial Chamber’s view that he had denied knowledge of the crimes committed in the Omarska camp.⁹¹⁴ He argues that he was aware of the maltreatment, but could do nothing to prevent the crimes. In his view, his knowledge alone is not sufficient to hold him responsible for the crimes.⁹¹⁵

392. The Appeals Chamber considers that it is irrelevant at this point whether Radic denied at the trial any knowledge of the crimes committed in the camp. The fact is that he was aware of the crimes. On appeal, he does not challenge the Trial Chamber’s finding that he was aware of the abuse of detainees. Once he was aware of the crimes committed in the camp, but still continued to support and further the functioning of the camp by carrying on with his duties in the camp, he is responsible for these crimes, regardless of his power to prevent them.⁹¹⁶
     4. Sexual crimes

393. Radic challenges the Trial Chamber’s finding that he raped Witness K, attempted to rape Witness J⁹¹⁷ and committed sexual violence against Witnesses J, K, Sifeta Susic and Zlata Cikota.⁹¹⁸ He submits that these findings are based upon an incorrect evaluation of the evidence presented.⁹¹⁹ Radic also submits that the Trial Chamber erred in law in finding that he raped Witness K. He argues that whereas, under the Yugoslav Penal Code, the crime of rape involves permanent and lasting resistance of the victim and simultaneous use of force or threat, the Trial Chamber erroneously held “that the resistance of victims in Omarska was broken due to conditions of imprisonment and that Radic applied force or threat”.⁹²⁰

394. The Prosecution submits that the Trial Chamber correctly applied the Kunarac et al. Appeal Judgement definition of rape. It argues that domestic rape laws are irrelevant, as the Statute of the Tribunal defines the crime of rape by reference to international law.⁹²¹

395. The Trial Chamber relied on the definition of rape as given in the Kunarac et al. Trial Judgement,⁹²² which reads as follows:

     In light of the above considerations, the Trial Chamber understands that the actus reus of the crime of rape in international law is constituted by: the sexual penetration, however slight: (a) of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or (b) of the mouth of the victim by the penis of the perpetrator; where such sexual penetration occurs without the consent of the victim. Consent for this purpose must be consent given voluntarily, as a result of the victim’s free will, assessed in the context of the surrounding circumstances.⁹²³

     This definition was confirmed by the Appeals Chamber, which added that the “assertion that nothing short of continuous resistance provides adequate notice to the perpetrator that his attentions are unwanted is wrong on the law and absurd on the facts”.⁹²⁴ Any diverging definition of the crime in Yugoslav law is irrelevant. Radic’s argument that the Statute was not in force when the crimes were committed⁹²⁵ is without merit: the prohibition of rape in armed conflicts has been long recognized in international treaty law as well as in customary international law.⁹²⁶

396. The Trial Chamber determined that “in cases of sexual assault … a status of detention will normally vitiate consent in such circumstances”.⁹²⁷ This is consistent with the jurisprudence of the Tribunal;⁹²⁸ Radic has not demonstrated any error of the Trial Chamber.

397. Finally, Radic appears to submit that the Trial Chamber’s reasoning with regard to its findings about Radic’s involvement in sexual violence is insufficient.⁹²⁹

398. The Appeals Chamber recalls that a Trial Chamber is not required to articulate every step of its reasoning, nor is a Trial Chamber obliged to recount and justify its findings in relation to every submission made during trial.⁹³⁰ The Appeals Chamber dismisses Radic’s argument that the Trial Chamber failed to satisfy the requirement of a reasoned opinion with regard to its findings about his involvement in sexual violence.

     (a) Witness J

399. Radic challenges the Trial Chamber’s finding that he attempted to rape Witness J. He argues that Witness J recounted a similar incident when she was assaulted by a man nicknamed “Kapitan”, and that it was impossible that two individuals would try to rape Witness J in the same manner within a short period of time.⁹³¹ In addition, Radic submits that the Trial Chamber’s conclusion that he committed sexual violence against Witness J by attempting to rape her is erroneous.⁹³² He argues that Witness J’s own testimony precludes his conviction because she testified that during the alleged incident she “practically stopped resisting” Radic’s advances . Therefore, he contends, he could have completed the crime, but abandoned it voluntarily.⁹³³ Radic also argues that the conviction for Witness J cannot stand because he was not charged with attempting to rape Witness J, but of sexually attacking her.⁹³⁴

400. With respect to the “abandonment” defence to the charge of sexual violence against Witness J, the Prosecution points out that Radic was not convicted of attempted rape but of sexual assault. Thus, even if Radic voluntarily abandoned the attempt to rape Witness J, the act of sexual violence would already have been committed.⁹³⁵ Therefore, in the view of the Prosecution, no variance exists between the Indictment and his conviction.

401. Radic’s argument that Witness J described two almost identical incidents, one involving Radic, the other involving a man nicknamed “Kapitan”, was considered by the Trial Chamber and rejected.⁹³⁶ Reviewing Witness J’s testimony, the Appeals Chamber notes that she clearly distinguished between the two incidents, and that her description of them differed in significant details.⁹³⁷ It was, therefore, open for the Trial Chamber to find that Witness J fell victim to two similar assaults, one committed by Radic, the other one committed by the person nicknamed “Kapitan ”. The Appeals Chamber does not agree with Radic’s contention that such an occurrence was impossible in circumstances where it was “commonplace for women to be subjected to sexual intimidation or violence”.⁹³⁸

402. With regard to sexual violence, the Trial Chamber found Radic guilty of persecution by crimes including sexual assault and rape (count 1 of the Indictment)⁹³⁹ and torture (count 16 of the Indictment).⁹⁴⁰ Count 15 (rape as a crime against humanity) was dismissed, because the crime was subsumed within the conviction for persecution.⁹⁴¹ Therefore Radic’s argument, that he was convicted for attempted rape although he had been charged with regard to Witness J with “sexual attack” only, is without merit. The Trial Chamber identified attempted rape as one form of sexual violence, and convicted Radic accordingly for persecution for crimes including sexual violence.⁹⁴² For the same reason, Radic’s defence that he abandoned the completion of the crime voluntarily is unfounded: the crime of sexual violence was already completed when Radic finally released Witness J, after he had ejaculated over her thighs and her skirt.⁹⁴³

     (b) Witness K

403. Radic argues that the testimony of Witness K is not reliable,⁹⁴⁴ as there were differences between Witness K’s written statements and her testimony before the Trial Chamber.⁹⁴⁵ Radic contends that the case of Prosecutor v. Sikirica et al., in which Witness K’s allegations of rape against an accused were not sufficient to establish his guilt, illustrates that she is not a credible witness.⁹⁴⁶ Radic submits that the Trial Chamber wrongly rejected the testimony of Vinka Andjic, whose evidence refuted an important part of Witness K’s testimony.⁹⁴⁷

404. With respect to Witness K, the Prosecution responds that the Trial Chamber considered the alleged inconsistencies in the evidence, and still found Witness K reliable.⁹⁴⁸

405. The Appeals Chamber notes that the Trial Chamber considered most of Radic’s arguments concerning Witness K’s testimony. Despite the existing differences between the earlier statements and Witness K’s testimony before the Trial Chamber, the Trial Chamber found her testimony credible.⁹⁴⁹ Having reviewed the relevant parts of the Trial transcript, the Appeals Chamber finds that it was open to a reasonable trier of fact to accept Witness K’s testimony.

406. Radic argues that the Trial Chamber erred by rejecting Vinka Andzic’s testimony.⁹⁵⁰ Vinka Andzic stated that she had never taken Witness K to Radic’s room, whereas Witness K had recounted that it was Vinka Andzic who had called her and brought her to Radic.⁹⁵¹ However, the Appeals Chamber agrees with the Prosecution that a reasonable trier of fact could disregard the testimony of a witness who testified that the female detainees praised Radic as a fine man who treated them correctly, and that the female detainees were living in Omarska camp in “excellent conditions”.⁹⁵²

407. The fact that in the case Prosecutor v. Sikirica et al. the Defence and the Prosecution written plea agreement did not rely on Witness K’s testimony that she was raped by Dusko Sikirica does not have any impact on the Trial Chamber’s findings in the present case. Facts stipulated in a plea agreement are not adjudicated facts. The Trial Chamber in the case Prosecutor v. Sikirica et al. did not rule on Witness K’s reliability. In any event, the rape of Witness K by Dusko Sikirica in the Keraterm camp and her rape by Radic in the Omarska camp are two different sets of facts. Even if a Trial Chamber had found that Witness K’s testimony about her rape by Dusko Sikirica was unreliable, it was still open for another reasonable trier of fact to conclude that her testimony about her rape by Radic in the Omarska camp was credible.

     (c) Witness F, Sifeta Susic, Zlata Cikota

408. Radic finally submits that the individual charges of sexual attack upon Witness F, Sifeta Susic, and Zlata Cikota cannot be considered as grave violations of the provisions of international humanitarian law, so that they do not fall within the Tribunal’s jurisdiction.⁹⁵³

409. Radic neither challenges the factual findings of the Trial Chamber with regard to these victims, nor does he contest the Trial Chamber’s determination that he inflicted by his assaults severe pain and suffering on Witness F, Sifeta Susic, and Zlata Cikota.⁹⁵⁴ The Trial Chamber was justified in drawing the conclusion that Radic’s attacks on these victims amounted to torture. The Appeals Chamber agrees with the Prosecution’s argument that torture is, by definition, a serious violation of international humanitarian law.⁹⁵⁵

410. This sub-ground of appeal accordingly fails.
     5. The application of the joint criminal enterprise doctrine

411. The Appeals Chamber understands that Radic challenges the Trial Chamber’s application of the joint criminal enterprise doctrine to his case.⁹⁵⁶ His submissions concerning this issue are found in various places throughout his Appeal Brief; the Appeals Chamber has rearranged them in order to consider them more conveniently.

     (a) Omarska camp as a joint criminal enterprise

412. Radic contests the Trial Chamber’s finding that the Omarska camp functioned as a joint criminal enterprise. He argues that, according to the Trial Chamber’s findings, anarchy and lawlessness prevailed in the camp. Thus, in his view, it is doubtful if a common design existed at all. Even if one existed, he submits, the Appellants were not aware of it and did not participate in its formulation.⁹⁵⁷

413. The Appeals Chamber has already determined that the systemic form of joint criminal enterprise does not require proof of an agreement between the participants.⁹⁵⁸ Radic’s argument as to the lawlessness and anarchy in the camp is inapposite. The existence of the camp and the organization of the guard service required a certain amount of organization. In fact, with regard to the intent of persecution of the non-Serb population of the Prijedor area, the camp functioned with terrible efficiency. The lawlessness and anarchy, referred to by the Trial Chamber, allowed the guards to maltreat the detainees at will.

     (b) Radic’s mens rea

414. Radic submits that he did not willingly or intentionally participate in the maintenance of the camp. On the contrary, he submits that: (i) he considered the camp solely his place of work, to which he was assigned by orders of his superiors ;⁹⁵⁹ (ii) he was a conscientious worker and had a tendency of obedience and conformity, as supported by the psychological report on his personality;⁹⁶⁰ and (iii) he was married with three children and fear for his family persuaded him not to confront the orders of his superiors.⁹⁶¹ Radic argues that he was not a willing participant in a joint criminal enterprise and was only concerned not to do anything in regard to his superiors or towards detainees that could create trouble for himself.⁹⁶² In addition, he submits that he was not aware that he could contribute to the maintenance and the functioning of the camp before his departure for Omarska.⁹⁶³

415. The Prosecution responds that the preceding additional reasons for staying at the camp were considered by the Trial Chamber but given little weight because the evidence showed that Radic never missed a shift, and that the Trial Chamber considered that those reasons did not amount to excuses or defences to liability for participating in war crimes or crimes against humanity.⁹⁶⁴ The Prosecution argues that Radic might not know the exact scope of the criminality of the activities in the camp before he arrived, but that, over time, he gained this knowledge.⁹⁶⁵

416. The Appeals Chamber notes that Radic acknowledges that he was aware of the crimes committed in the camp.⁹⁶⁶ His argument, that he worked in the camp because of his orders and fear of the consequences of disobeying them, confounds intent and motives.⁹⁶⁷ As long as he participated in the functioning of the camp knowingly and willingly, his motives for doing so are irrelevant to the finding of his guilt.

417. In addition, Radic submits that the Trial Chamber erred in reaching the conclusion that he had a choice not to stay in the camp.⁹⁶⁸ He argues that he made a request to leave the camp, but the request was rejected.⁹⁶⁹ He also submits that the Trial Chamber erred in finding that other guards had the choice to leave the camp, as the evidence demonstrated that certain guards left the camp, but only temporarily. In his view, there was no evidence that guards left the camp permanently and of their own will due to disagreement about the functioning of the camp.⁹⁷⁰

418. The Trial Chamber noted that it was not convinced that Radic had no choice but to stay in the camp. It found that he chose to be “conscientious” and stayed at the camp, never missing a single shift.⁹⁷¹ Radic acknowledged that the discipline in the camp was so lax that guards left the camp to work their fields or even went swimming.⁹⁷² Moreover, Kvocka, who held as the factual equivalent of deputy commander of the camp security a more important position than Radic, was dismissed from the camp without suffering any further repercussions. These facts show that camp personnel had other alternatives than conscientiously fulfilling their duties. The Appeals Chamber concludes that it was open for a reasonable trier of fact to find that Radic’s conscientious fulfilment of his obligations in the camp was due to his own decision.

     (c) The significance of Radic’s participation

419. Radic contests the Trial Chamber’s finding that his participation in the Omarska camp was a significant one.⁹⁷³ He argues that the camp was established by order of Simo Drljaca, and that the Appellants were responsible neither for the arrest nor for the release of detainees. He points to the Trial Chamber’s finding that none of the Appellants had influence on the conditions in the camp.⁹⁷⁴ In addition, he submits that he could not prevent the guards on his shift from committing crimes .⁹⁷⁵ Radic contends that the system would have functioned without his contribution, and that his participation was not essential and therefore insignificant.⁹⁷⁶

420. The Prosecution rejects Radic’s “piecemeal approach” and argues that the totality of evidence of Radic’s position, conduct, experience and participation in the camp allowed the Trial Chamber to conclude that his conduct made him a co-perpetrator of crimes committed in pursuance of the joint criminal enterprise of the Omarska camp.⁹⁷⁷

421. The Appeals Chamber has already determined that Radic’s challenges of the factual findings of the Trial Chamber are unfounded. Likewise, Radic’s assertion that he could not prevent crimes has been discussed. The Appeals Chamber recalls that the Prosecution need not demonstrate that the accused’s participation in the joint criminal enterprise is a sine qua non, without which the crimes could or would not have been committed.⁹⁷⁸ Furthermore, it is, in general, not necessary to prove the substantial or significant nature of the contribution of an accused to the joint criminal enterprise to establish his responsibility as a co-perpetrator: it is sufficient for the accused to have committed an act or an omission which contributes to the common criminal purpose .⁹⁷⁹ The Appeals Chamber finds that Radic has not shown why no reasonable trier of fact could have found that he participated in the joint criminal enterprise.
     6. Conclusion

422. The Appeals Chamber finds that because Radic has not demonstrated any factual error on the part of the Trial Chamber, his fourth ground of appeal is rejected.
     V. SEPARATE GROUNDS OF APPEAL OF ZIGIC

423. Zigic filed his Appeal Brief on 21 May 2002, without identifying specific grounds of appeal. Pursuant to an order of the Pre-Appeal Judge of 14 June 2002, he filed a consolidated list of grounds of appeal on 3 July 2002 (hereinafter referred to as “Zigic Additional Document”), listing 47 grounds of appeal. However, many of these grounds of appeal refer to the same sections of his Appeal Brief, whereas in other cases he advances identical arguments in support of different grounds of appeal. Several of his grounds of appeal refer to the issue of joint criminal enterprise, which has already been discussed.⁹⁸⁰ To avoid repetition, the Appeals Chamber therefore has rearranged his grounds of appeal.
     A. Alleged errors concerning more than one ground of appeal
     1. Standard of review

     (a) Admissible grounds of appeal

424. In several cases, Zigic has asked the Appeals Chamber to consider his Final Trial Brief as forming part of his Appeal Brief.⁹⁸¹ As ground of appeal 47, he submits “all others grounds defined in Appellant’s Brief, but not mentioned in this Document [sic].”⁹⁸²

425. The Appeals Chamber recalls that an appellant is obliged to clearly set out his grounds of appeal as well as the arguments supporting them. He has to provide the Appeals Chamber with exact references to paragraphs in judgements, transcript pages, exhibits or any authorities, indicating precisely the date and exhibit page number or paragraph number of the text to which reference is made, so that the Appeals Chamber may fulfil its mandate in an efficient and expedient manner.⁹⁸³ General references to the submissions made during the trial clearly do not fulfil this requirement, and therefore will be disregarded by the Appeals Chamber. The same applies to Zigic’s ground of appeal 47.

     (b) Additional evidence

426. The Appeals Chamber has granted in part a motion by Zigic to adduce additional evidence,⁹⁸⁴ and has heard two additional witnesses and two rebuttal witnesses. In determining whether the additional evidence actually reveals an error of fact of such magnitude as to occasion a miscarriage of justice, the Appeals Chamber has set out the applicable test in the Kupreskic et al. Appeal Judgement:

     The test to be applied by the Appeals Chamber in deciding whether or not to uphold a conviction where additional evidence has been admitted before the Chamber is: has the appellant established that no reasonable tribunal of fact could have reached a conclusion of guilt based upon the evidence before the Trial Chamber together with the additional evidence admitted during the appellate proceedings.⁹⁸⁵

     In Blaskic, the Appeals Chamber cited and affirmed that test. The Appeals Chamber noted that in the context of the Kupreskic case, the Appeals Chamber simply applied a deferential standard of review to the totality of the evidence admitted both at trial and on appeal, because the appellant had successfully established that no reasonable trier of fact could have reached a finding of guilt based on that evidence.⁹⁸⁶ However, as the Appeals Chamber in Blaskic further correctly noted, the Appeals Chamber in Kupreskic was not faced with the question of what test to apply where the outcome would be that in light of the trial evidence considered together with the additional evidence admitted on appeal, “a reasonable trier of fact could reach a conclusion of guilt beyond a reasonable doubt.”⁹⁸⁷ In that case, the Appeals Chamber in Blaskic concluded that “it should, in the interests of justice, be convinced itself, beyond reasonable doubt, as to the guilt of the accused, before confirming a conviction on appeal.”⁹⁸⁸ Consequently, the Appeals Chamber in Blaskic answered the question left open in Kupreskic, further developing the test first articulated therein.

     In reaching this conclusion, the Appeals Chamber in Blaskic underscored that such a standard of review is necessary in the interests of justice as well as for reasons of due process when considering a case before this International Tribunal because, if any lower standard were to be applied, “then the outcome would be that neither in the first instance, nor on appeal, would a conclusion of guilt based on the totality of the evidence relied upon in the case … be reached by either Chamber beyond reasonable doubt.”⁹⁸⁹

     The Appeals Chamber in Blaskic indicated, when summarizing the above test, the following two steps in a case where an error of fact is alleged and additional evidence proffered by the Defence is admitted:

     (i) The Appeals Chamber will first determine, on the basis of the trial record alone, whether no reasonable trier of fact could have reached the conclusion of guilt beyond reasonable doubt. If that is the case, then no further examination of the matter is necessary as a matter of law.⁹⁹⁰

     (ii) If, however, the Appeals Chamber determines that a reasonable trier of fact could have reached a conclusion of guilt beyond reasonable doubt, then the Appeals Chamber will determine whether, in light of the trial evidence and additional evidence admitted on appeal, it is itself convinced beyond reasonable doubt as to the finding of guilt.⁹⁹¹

427. It has of course to be borne in mind that, as the Appeals Chamber has noted several times, the task of hearing, assessing and weighing the evidence is left primarily to the Trial Chamber:

     The reason that the Appeals Chamber will not lightly disturb findings of fact by a Trial Chamber is well known. The Trial Chamber has the advantage of observing witnesses in person and so is better positioned than the Appeals Chamber to assess the reliability and credibility of the evidence. Accordingly, it is primarily for the Trial Chamber to determine whether a witness is credible and to decide which witness’s testimony to prefer, without necessarily articulating every step of the reasoning in reaching a decision on these points.⁹⁹²

428. Therefore, the Appeals Chamber will uphold a conviction on the basis that a reasonable trier of fact could have arrived at a conviction on the evidence on the trial record in two cases:

     (i) if there is no additional evidence admitted;

     (ii) if additional evidence is admitted, but upon further review, is found to be not credible or irrelevant, so that it could not have been a decisive factor in reaching the decision at trial.⁹⁹³

     2. Alleged errors concerning the Indictment (grounds of appeal 44, 21, 29 and 35)

429. In several instances, Zigic raises objections in relation to the Indictment. The Appeals Chamber understands him to be concerned about the form of the Indictment, in particular the use of Schedules, which Zigic alleges have led to confusion and have hampered his defence. Secondly, he maintains that he was not properly charged with some of the crimes of which he was convicted.

     (a) Zigic was not fairly informed about charges against him; the charges are not properly defined especially through Schedules A, B, C, D and E (grounds of appeal 33 and 34)

430. Most of the arguments Zigic raised under this ground of appeal have been already discussed.⁹⁹⁴ In addition, Zigic submits that the parallel existence of confidential and public Schedules caused problems for his Defence.⁹⁹⁵

431. The public versions of the Schedules were filed as a consequence of the Trial Chamber’s decision of 22 February 2001.⁹⁹⁶ In his Appeal Brief, Zigic only advances arguments of a general nature and does not identify any specific prejudice to his defence. Reviewing the arguments exchanged at the Pre-Defence Conference, the Appeals Chamber notes that Zigic was concerned that the confidentiality of the Schedules would prevent him from contacting possible witnesses.⁹⁹⁷ To address these concerns, the Trial Chamber issued the decision of 22 February 2001, and the Prosecution filed the new public and confidential Schedules. Zigic fails to identify any problems his Defence encountered afterwards. The Appeals Chamber agrees with the argument of the Prosecution that “[a]ny confusion can be addressed at trial by explanations sought from the Prosecution or from the Trial Chamber,” or by an application to grant additional time to prepare the defence.⁹⁹⁸ Zigic did not employ any of these possibilities.

     (b) Zigic was convicted of offences that were not pleaded in the Indictment (grounds of appeal 21, 29, 35 and 44)

432. Zigic submits that the Trial Chamber found him responsible for some acts he had not been charged with, either in the Indictment or in the Schedules. He argues that the Trial Chamber erred in convicting him for persecution against witnesses Abdulah Brkic, AE, V and Edin Ganic and for the torture of Abdulah Brkic because these names were not mentioned in the Indictment. It is his position that, according to the Schedules, he was not charged with torture or inhumane acts against Witnesses AE, V and Edin Ganic, whereas other crimes alleged in the Schedules, such as the murder of “Hanki” Ramic and the persecution and torture of “Dalia” Hrnic, Jasmin Cepic, Fadil Avdagic and Witness AC, were not mentioned in the Judgement.⁹⁹⁹

433. The Appeals Chamber notes that Abdulah Brkic’s name is listed in Schedule D exclusively under counts 11-13 (torture and cruel treatment), whereas Edin Ganic, Witnesses AE and V are listed under counts 1-3 (persecution) exclusively. For Edin Ganic and Witness AE, the Schedule mentions persecution by confinement in inhumane conditions and beating. For Witness V the Schedule mentions persecution by confinement in inhumane conditions only. The Trial Chamber found Zigic guilty of persecution of all four victims, and of torture with respect to Abdulah Brkic and Witness AE.

434. In order to address Zigic’s complaints, the Appeals Chamber has to determine (i) whether the Trial Chamber returned convictions on the basis of material facts not pleaded in the Indictment; and (ii) if the Appeals Chamber finds that the Trial Chamber did rely on such facts, whether the trial of Zigic was thereby rendered unfair.¹⁰⁰⁰ The Appeals Chamber recalls its finding in the Kupreskic et al. Appeal Judgement:

     The Appeals Chamber must stress initially that the materiality of a particular fact cannot be decided in the abstract. It is dependent on the nature of the Prosecution case. A decisive factor in determining the degree of specificity with which the Prosecution is required to particularise the facts of its case in the indictment is the nature of the alleged criminal conduct charged to the accused. For example, in a case where the Prosecution alleges that an accused personally committed the criminal acts, the material facts, such as the identity of the victim, the time and place of the events and the means by which the acts were committed, have to be pleaded in detail. Obviously, there may be instances where the sheer scale of the alleged crimes “makes it impracticable to require a high degree of specificity in such matters as the identity of the victims and the dates for the commission of the crimes.”¹⁰⁰¹

     In this context, the Kupreskic Appeals Chamber referred to the decision of the Trial Chamber in the present case of 12 April 1999:

     As to the Defence request for more specific information regarding victims of the crimes alleged, the degree of detail that is required presents a special difficulty, and it is in this area that the contrast between a domestic criminal law system and an international criminal tribunal is most pronounced. There can be little doubt but that the identity of the victim is information that is valuable to the Defence in the preparation of their cases. But the massive scale of the crimes alleged before this International Tribunal does not allow for specific naming of victims. However, if the Prosecution is in a position to do so, it should.¹⁰⁰²

     In the view of the Trial Chamber, the scale of the crimes committed, in particular in the Keraterm and Omarska camps, made it impossible for the Prosecution to include information about all of the victims. The Prosecution did name a large number of victims, and the Appeals Chamber will also take this into consideration when determining the second aspect mentioned above, namely, whether the exclusion of particular information rendered the trial unfair.

     (i) Edin Ganic (ground of appeal 44)

435. With regard to Edin Ganic, the charge is specified in Schedule D as confinement in inhumane conditions and beating. The Appeals Chamber understands that Zigic challenges his conviction, because he was charged with persecution by beating and was convicted of persecution by committing an inhumane act.¹⁰⁰³ Considering the fact that the Trial Chamber correctly found that “mutilation and other types of severe bodily harm, beating and other acts of violence” fall under the category of inhumane acts,¹⁰⁰⁴ the Appeals Chamber does not find any error of law in its reasoning.

436. Zigic further submits that he was accused of beating Edin Ganic on 4 June 1992, whereas, according to the evidence accepted by the Trial Chamber, this incident took place by the end of June 1992.¹⁰⁰⁵ The Appeals Chamber recalls the Kunarac et al. Appeal Judgement:

     [M]inor discrepancies between the dates in the Trial Judgement and those in the Indictment in this case go to prove the difficulty, in the absence of documentary evidence, of reconstructing events several years after they occurred and not, as implied by the Appellant, that the events charged in Indictment IT-96-23 did not occur.¹⁰⁰⁶

     Zigic was charged with one beating of Edin Ganic in the Keraterm camp on 4 June 1992; the Indictment named as “other perpetrators” Nenad Banovic, Pedrag Banovic, Goran Laic and Dusan Knezevic. The Trial Chamber found that Zigic, Pedrag Banovic, Dusan Knezevic and other people¹⁰⁰⁷ beat Edin Ganic on or shortly before the 29th of June.¹⁰⁰⁸ As Edin Ganic was brought to the camp around 25 June¹⁰⁰⁹ and recounted only one incident involving Zigic in Keraterm, there is no doubt that the Indictment and the Judgement refer to the same incident, only under a different date. Although Zigic challenged the credibility of the witnesses to this incident, the exact date was irrelevant to his Defence. He has not identified any prejudice his Defence suffered from the inclusion of the wrong date in the Indictment.

     (ii) Abdulah Brkic (ground of appeal 21)

437. Zigic claims that the charge of torture of Abdulah Brkic was improperly excluded from the original Indictment. It was only included in Schedule D, which came to his notice in May 1999 and was kept confidential until 1 March 2001, which made it difficult for him to prepare his defence.¹⁰¹⁰ He submits that his right to have concrete and clear charges was violated.¹⁰¹¹ The Prosecution notes that counts 11-13 of the Indictment indicate that Zigic participated in the torture and/or beating of prisoners at the Omarska, Keraterm and Trnopolje camps, including specified incidents involving specified victims. The Prosecution submits that the use of the word “including” indicates that the specified incidents and victims were not exhaustive. Further, the Prosecution argues that Abdulah Brkic is mentioned in the Schedule with sufficient detail to put Zigic on notice of the charge he had to meet.¹⁰¹²

438. The Appeals Chamber notes that Abdulah Brkic is not mentioned in the main body of the Indictment, but in the attached Schedule D. He is listed under counts 11- 13 (torture and cruel treatment) of Schedule D, but not under counts 1-3 (persecution). In relation to counts 11-13, the Indictment reads:

     24. Between 24 May 1992 and 30 August 1992, Miroslav KVOCKA, Dragoljub PRCAC, Milojica KOS, Mladjo RADIC and Zoran ZIGIC participated in persecutions of Bosnian Muslims, Bosnian Croats and other non-Serbs in the Prijedor area, on political, racial or religious grounds.

     25. The persecution included the following means:

     […]

     b. the torture and beating of Bosnian Muslims, Bosnian Croats and other non-Serbs in Prijedor municipality, including many of the people detained in the Omarska, Keraterm and Trnopolje camps in addition to those listed in Schedules A-E;

     The Trial Chamber convicted Zigic for persecution under count 1 and for torture under count 12 against Abdulah Brkic. In both cases, the Trial Chamber entered the conviction for “crimes in the Omarska camp generally” and in particular against several victims, among them Abdulah Brkic.¹⁰¹³

439. Although the name of Abdulah Brkic was not linked to counts 1-3, it is clear that the list of victims of persecution given in the Schedules is not exhaustive. The Indictment referred to the torture of non-Serbs, including many detainees in the camps, “in addition to those listed in Schedules A-E”.¹⁰¹⁴ The facts underlying both the conviction for torture and the conviction of persecution were pleaded in the Indictment, as Zigic was convicted of persecution by means of torture. The only additional requirement for the conviction for persecution is the requirement of discriminatory intent. This specific intent was inferred by the Trial Chamber from Zigic’s knowledge of the functioning of the camps as part of a widespread and systematic discriminatory attack on the civilian population. These facts were also pleaded in the Indictment; and Zigic did not raise any particular objections with regard to the finding that he committed the crime against Abdulah Brkic with discriminatory intent. The Appeals Chamber therefore does not find that Zigic suffered any prejudice by the fact that he was charged with torture, but not with persecution with regard to Abdulah Brkic. Moreover, the Appeals Chamber notes that, notwithstanding the Trial Chamber’s findings that Zigic committed torture against Abdulah Brkic, Zigic was acquitted of torture as a crime against humanity because it was subsumed by the crime of persecution. If the Appeals Chamber found that Zigic did not have notice that Abdulah Brkic would be considered as a persecution victim, then the obvious result would be to enter an additional and separate conviction for torture as a crime against humanity – a result contrary to Zigic’s interests.

     (iii) Witness AE (ground of appeal 29)¹⁰¹⁵

440. Zigic submits that he was not properly charged in relation to the torture of Witness AE. The charge was mentioned neither in the Indictment nor in Schedule D.¹⁰¹⁶ The Prosecution recalls that the beatings of Witness AE and RedZep Grabic were mentioned as particulars under count 13 of the Indictment,¹⁰¹⁷ and that while Witness AE’s name was not explicitly mentioned in Schedule D, he was included in the “group of prisoners” alleged to have been beaten by Zigic and referred to in paragraph 41(f) of the Indictment.¹⁰¹⁸

441. Paragraph 41 (f) of the Indictment reads:

     COUNTS 11 to 13

     (TORTURE and CRUEL TREATMENT)

     41. Between 24 May 1992 and 30 August 1992, Zoran ZIGIC and others participated in the torture and/or beating of Bosnian Muslim, Bosnian Croat and other non-Serb prisoners in the Omarska, Keraterm and Trnopolje camps, including:

     […]

     f. Between 22 and 27 June 1992, at the Keraterm camp, Zoran ZIGIC, and others, including Dusan Knezevic, brutally beat a group of prisoners confined in Room 2, including RedZep Grabic;

     The name of one victim, RedZep Grabic, is mentioned expressly. It is not clear when the Prosecution learned that Witness AE also belonged to this group of victims. However, as Zigic was informed of the approximate date of the incident, of the name of one victim and of the name of one alleged co-perpetrator, the Appeals Chamber finds that an eventual omission of the Prosecution to provide him with the name of Witness AE as a further victim did not render his trial unfair. The charge was that he tortured “prisoners”. The Trial Chamber found that he did. In addition, the Appeals Chamber notes that it was clear to Zigic that Witness AE was part of the same group of prisoners as RedZep Grabic. During his testimony on 29 August 2000, Witness AE recounted how Zigic, after beating the prisoners, ordered them to form pairs and fight each other. Witness AE and RedZep Grabic formed one of these pairs.¹⁰¹⁹ Moreover, the Defence did not object to Witness AE’s evidence about his beating as being outside the scope of the Indictment. This ground of appeal is dismissed.

     (iv) Witness V (ground of appeal 35)

442. Zigic argues that the beating of Witness V was neither mentioned in the Indictment nor in any of the Schedules.¹⁰²⁰ He notes that the only charge related to Witness V is for confinement in inhumane conditions, and that he was convicted of persecution for having kicked and wounded Witness V, constituting an inhumane act. The Prosecution responds that counsel for Zigic did not cross-examine Witness V on his credibility or the reliability of his information as to his beating at the trial and has not demonstrated how he could have suffered any prejudice as a result.¹⁰²¹ The Prosecution notes that Schedule D did include a reference to Witness V being confined in inhumane conditions.¹⁰²²

443. The Appeals Chamber notes that Witness V is mentioned only once in Schedule D under counts 1-3 (persecution): “Witness V – Confined in inhumane conditions, 14 June – 5 August 1992.” With regard to other victims, more information is provided . For example, the entry for Witness AE reads: “Witness AE – Confinement in inhumane conditions, beating with metal rod in Keraterm, June 1992.” For Edin Ganic, the relevant entry reads: “Edin Ganic – Confinement in inhumane conditions and beating, 4 June 1992.” With regard to Witness V, there are no references to beating. The Trial Chamber found Zigic responsible for committing an inhumane act against Witness V and convicted him of persecution.¹⁰²³

444. Subject to the finding in the following paragraph, the Appeals Chamber finds the indictment to be too vague on this point. Even if beating constitutes one of the elements of confinement under inhumane conditions,¹⁰²⁴ so that the indictment can be understood to comprise also the cruel treatment of Witness V, the material fact of the inhumane act committed against Witness V was not pleaded. Schedule D only mentions the period of confinement and does not make any reference to beatings, whereas with regard to other victims, the Schedule contains not only the period of their detention, but also more specific information about beatings and torture. Thus, Zigic could initially not expect to be confronted with any particular incident with regard to Witness V.

445. The Appeals Chamber notes that Defence Counsel for Zigic did not cross-examine Witness V about Zigic’s attack on Witness V, nor did he object to the witness’ evidence as being outside the scope of the Indictment. The Appeals Chamber recalls that, when an appellant raises a defect in the indictment for the first time on appeal, he has the burden of showing that his ability to prepare his defence was materially impaired.¹⁰²⁵ In the case under appeal, Zigic does not challenge the factual findings of the Trial Chamber. It is clear that the findings of the Trial Chamber included a finding that Witness V was confined in inhumane conditions, for which Zigic was charged. Such confinement is a form of persecution. Therefore, apart from the alleged beating, Zigic was properly convicted of persecuting Witness V. Under these exceptional circumstances, the Appeals Chamber does not find that Zigic suffered any prejudice from the vagueness in the Indictment.
     3. Bias of the Trial Chamber, absence of reasoning (grounds of appeal 40 and 46)

446. Zigic claims the Trial Chamber was biased against him. His main argument in this respect is that the Trial Chamber failed to give sufficient reasons for his conviction.¹⁰²⁶ Zigic submits that, as there was an unequal treatment of facts in favour of him and those against him, this constitutes both an error of law and an error of fact.¹⁰²⁷

447. The Appeals Chamber recalls that it is necessary for any appellant claiming an error of law because of the lack of a reasoned opinion that he identify the specific issues, factual findings or arguments which he submits the Trial Chamber omitted to address and to explain why this omission invalidated the decision. General observations on the length of the judgement, or of particular parts of the judgement, or of the discussion of certain parts of the evidence, do not qualify as the basis of a valid ground of appeal.¹⁰²⁸ Whenever Zigic advances specific arguments, the Appeals Chamber will consider them in their proper context.

448. The same principle applies to the alleged bias and unfairness of the Trial Chamber. The Appeals Chamber finds that the general observations Zigic advances to support his view that the Trial Chamber was biased and unfair do not meet the requirements of a ground of appeal under Article 25 (1) of the Statute. These grounds of appeal are therefore dismissed.
     4. Evidence of consistent pattern of conduct (ground of appeal 39)

449. In several instances, the Trial Chamber used evidence about incidents not charged in the indictment as corroborating evidence of a consistent pattern of conduct pursuant to Rule 93 of the Rules. Zigic argues that his conduct demonstrated no pattern of conduct, manners and other characteristics that allowed him to be singled out in Omarska and Keraterm. For example, he was not found to have beaten detainees with a specific type of tool associated with his previous activities. Zigic further submits that the Trial Chamber violated Rules 66 and 93(B), as he was not informed about the events later stated in the Trial Judgement as proof of a consistent pattern of conduct.

450. The Appeals Chamber understands that Zigic raises three different issues: ( i) the Trial Chamber erred in law in its application of Rule 93, (ii) the Trial Chamber erred in law admitting the respective evidence because it was not properly disclosed, and (iii) the Trial Chamber committed an error of fact because the respective evidence was not reliable.

451. The Appeals Chamber will not entertain arguments that do not allege legal errors invalidating the Judgement, or errors of fact occasioning a miscarriage of justice. An argument that does not have the potential to affect the outcome of this appeal does not constitute an appropriate ground of appeal.¹⁰²⁹ As the relief sought, Zigic requested that the relevant evidence on record be replaced by a different set of facts.¹⁰³⁰ He has failed to demonstrate how this would affect the outcome of the appeal. The only instance he mentions in which Rule 93 evidence was applied is the murder of Becir Medunjanin.¹⁰³¹ However, a review of the Trial Chamber’s finding shows that the Trial Chamber made no use of Rule 93 evidence in this context. Regarding the factual findings challenged by Zigic, the Appeals Chamber finds that he simply attributes more credibility and importance to his witnesses than to those of the Prosecution; this cannot form the basis of a successful objection.¹⁰³² Zigic has failed to show that the alleged legal errors invalidated the decision.
     5. Persecution and discriminatory intent (grounds of appeal 40, 41, 36, 38)

452. The Appeals Chamber understands Zigic to be arguing that there was an error of law in that the Trial Chamber applied an incorrect legal standard in determining whether he had the necessary mens rea for persecution (ground of appeal 41 ). He also argues that the Trial Chamber failed to give sufficient reasons for its decision (ground of appeal 40) and, finally, that its findings did not support the conclusion that he acted with discriminatory intent (grounds of appeal 17, 36 and 38).

     (a) The Trial Chamber’s establishment of discrimination was erroneous (ground of appeal 41)

453. Zigic claims that the Trial Chamber did not answer questions regarding discriminatory intent or the pattern that is required for conviction on persecution. He argues that discrimination must be based on comparison. It is his submission that the Trial Chamber reached the conviction for persecution simply because the perpetrators were Serbs, the victims Muslims. But he submits that the Serbs only persecuted those who were in favour of secession and who were adversaries in the armed conflict.¹⁰³³ He claims that the Trial Chamber failed to find the discriminatory intent in this charge.¹⁰³⁴ In response,¹⁰³⁵ the Prosecution argues the Trial Chamber correctly defined the elements of persecution as referring to (i) an act or omission violating a victim’s basic or fundamental rights; (ii) the act or omission being one which was committed on political, racial or religious grounds; and (iii) the act or omission being one which was committed with discriminatory or persecutory intent.¹⁰³⁶ The Trial Chamber’s findings supported the conclusion that the establishment of the camps fitted into a wider persecutory plan to drive the non-Serb population out of Prijedor, that those detained in the camps were selected on discriminatory grounds, and finally that virtually all offences committed in the camps were committed on discriminatory grounds.¹⁰³⁷ In relation to discriminatory intent, the Prosecution submits that the Trial Chamber’s articulation of the mens rea for persecution was legally correct. The requisite discriminatory intent, the Prosecution argues, could be inferred from the conduct itself and the context in which it occurred.¹⁰³⁸

454. The Appeals Chamber recalls that in the jurisprudence of the Tribunal, persecution as a crime against humanity is defined as:

     (…) an act or omission which:

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

     2. was carried out deliberately with the intention to discriminate on one of the listed grounds, specifically race, religion or politics (the mens rea).¹⁰³⁹

     The Appeals Chamber finds that there is no basis for Zigic’s claim that the Trial Chamber erred in law in its definition of persecution.¹⁰⁴⁰

455. In application of this standard, the Trial Chamber considered that when all the detainees were non-Serbs or those suspected of sympathizing with non-Serbs, it would be disingenuous to contend that religion, politics, and ethnicity did not define the group targeted for attack. In relation to the facts of the present case, the Trial Chamber noted:

     [V]irtually all the offences alleged were committed against non-Serb detainees of the camps. The victims were targeted for attack on discriminatory grounds. While discriminatory grounds form the requisite criteria, not membership in a particular group, the discriminatory grounds in this case are founded upon exclusion from membership in a particular group, the Serb group. ?…g There is no doubt that the attacks specifically targeted the non-Serb population of Prijedor and purported to drive this population out of the territory or to subjugate those remaining. The Trnopolje and Keraterm camps appear to have been each established as part of a common plan to effectuate this goal, and the Omarska camp was clearly established to effectuate this goal. ¹⁰⁴¹

     Although the Trial Chamber made these observations in the context of the discussion of the mens rea for persecution, they also support the conclusion that the crimes committed in the camps discriminated in fact. In the Omarska camp, a few Bosnian Serbs were also detained, reportedly because they were suspected of having collaborated with the Muslims.¹⁰⁴² Although the Trial Chamber’s arguments mainly relate to the Omarska camp, it did not leave any doubt that the same conditions prevailed in the Keraterm and Trnopolje camps. Even if the Trial Chamber expressed some doubt that the Keraterm and Trnopolje camps were established to discriminate against non-Serbs, it clearly saw the operation of these camps in the same light as the Omarska camp.¹⁰⁴³

456. With regard to these factual findings, Zigic argues that the Trial Chamber erred because the rationale behind the persecution was not religion or ethnicity, but the issue of secession. However, Zigic fails to identify any evidence to support this position. The evidence on the Trial Record which the Appeals Chamber reviewed does not support this view; no witness mentioned that he was ever asked about his opinion regarding secession. Moreover, even if Zigic’s contention were accurate, the alleged acts would be based on political grounds; alternatively, they would be based on the racial reasons underlying the alleged secession. Such grounds would suffice to support persecution.

457. The Appeals Chamber notes that, in his Appeal Brief, Zigic refers only to two detainees who were not clearly members of the non-Serb group: Jugoslav Gnjatovic, a Serb soldier, and Drago TokmadZic, who was of half-Serbian, half-Croatian origin. Jugoslav Gnjatovic was firstly detained in Keraterm and then moved to Omarska for a few days. In Keraterm, he was kept in a room with other Serb soldiers, apart from the Muslim detainees. He told the Trial Chamber that this group was treated significantly better than the other detainees:

     Q. What was your status in that military prison?

     A. Well, it was normal, but we weren't allowed to move around. We had the status of military policemen, we had our meals together, but we didn't have our weapons, of course.¹⁰⁴⁴

     They were sometimes provided with alcohol and cigarettes,¹⁰⁴⁵ and Jugoslav Gnjatovic did not mention any beating of this group of detainees in the camp. This different treatment of Serbian and Muslim detainees confirms the finding that the maltreatment of non-Serbian detainees was committed with the requisite discriminatory intent based on their ethnic, religious or political affiliation.¹⁰⁴⁶

458. With regard to Drago Tokmadzic, Zigic argues that he was not only half-Serbian, but had also signed a declaration of loyalty to the Serbian authorities and that he had even brought detainees to Keraterm himself.¹⁰⁴⁷ The very fact that Drago Tokmadzic had to sign a declaration of loyalty, something which was demanded of no Serbian member of the police force, including Zigic,¹⁰⁴⁸ shows that he was singled out and mistrusted because of his ethnic background.

459. The Appeals Chamber notes that there was a large amount of evidence before the Trial Chamber allowing the conclusion that the detainees in the Omarska, Keraterm and Trnopolje camps were detained there because they were members of a group defined by “religion, politics and ethnicity”.¹⁰⁴⁹ Zigic does not challenge the Trial Chamber’s finding that the acts committed in the camps formed part of a widespread and systematic attack against the Muslim and Croat civilian population.¹⁰⁵⁰ The objective requisites for the crime of persecution are thus met.

460. With regard to the required mens rea, the Appeals Chamber reiterates that persecution as a crime against humanity requires evidence of a specific intent to discriminate on political, racial or religious grounds. This intent may not be inferred directly from the general discriminatory nature of an attack characterized as a crime against humanity; such a context may not in and of itself amount to evidence of discriminatory intent. However, discriminatory intent may be inferred from such a context as long as, in view of the facts of the case, circumstances surrounding the commission of the alleged acts substantiate the existence of such intent. Circumstances which may be taken into consideration include the systematic nature of the crimes committed against a racial or religious group and the general attitude of the alleged perpetrator as demonstrated by his behaviour.¹⁰⁵¹

461. Considering that all the crimes Zigic was convicted of were committed in the framework of the Omarska, Keraterm and Trnopolje camps,¹⁰⁵² that these camps were part of a widespread and systematic attack on the non-Serb civilian population, and that the overwhelming majority of detainees in these camps belonged to this group, the Trial Chamber correctly found that the discriminatory intent of Zigic against the detainees could be inferred from his activities within these camps.¹⁰⁵³ The Trial Chamber’s findings comprise several additional circumstances which support this conclusion : Zigic accused Sead Jusufagic of “shooting at Serb soldiers and policemen”, clearly indicating the ethnic background of the conflict.¹⁰⁵⁴ In Keraterm, Zigic called out detainees who were subsequently beaten and forced to sing “Chetnik” (i.e. Serbian) songs.¹⁰⁵⁵ Prior to his maltreatment Edin Ganic was told by Zigic to sit on the ground in the “Turkish fashion”,¹⁰⁵⁶ “Turk”, as used in Bosnia, being a derogative term applied to Bosnian Muslims. In Trnopolje, Zigic addressed the detainees with the greeting “Good day to you, balijas”,¹⁰⁵⁷ “balijas” being another highly pejorative term for Muslims.¹⁰⁵⁸

     (b) The irrelevance of personal motives

462. In several instances, Zigic argues that he lacked the requisite discriminatory intent because, according to the Trial Chamber’s findings, he committed the relevant acts for personal motives. The motive for the abuse of Edin Ganic, Zigic states, was not discrimination, but personal gain. This is supported by the Trial Chamber’s finding that Zigic tried to extort money and a motorbike from Edin Ganic.¹⁰⁵⁹ Zigic submits that Drago TokmadZic was maltreated not because of his ethnic background, but because of the hostility he incurred during his service as a police officer prior to the war.¹⁰⁶⁰

463. The Trial Chamber explicitly noted that crimes against humanity can be committed for purely personal reasons.¹⁰⁶¹ The Appeals Chamber confirms that

     the relevant case-law and the spirit of international rules concerning crimes against humanity make it clear that under customary law, “purely personal motives” do not acquire any relevance for establishing whether or not a crime against humanity has been perpetrated.¹⁰⁶²

     Motive and intent must be distinguished. Personal motives, such as settling old scores, or seeking personal gain, do not exclude discriminatory intent. They may become relevant at the sentencing stage in mitigation or aggravation of the sentence,¹⁰⁶³ but they do not form part of the prerequisites necessary for conduct to fall within the definition of a crime against humanity.¹⁰⁶⁴ Edin Ganic only became a possible object of Zigic’s demands because he was detained as a Muslim and could offer no resistance, whereas Zigic was, as a member of the security forces, in a position of authority over him. The discriminatory intent and the personal covetous motive are not mutually exclusive, rather closely interlocked. In fact, the coercive demands for money from the detainees helped to create the atmosphere of insecurity, harassment and humiliation in the camps.¹⁰⁶⁵

464. With regard to Drago Tokmadzic, Witness DD/6 and Jugoslav Gnjatovic in fact stated that he had had conflicts with several persons because of his former activities as a police officer. Both witnesses stated further that these conflicts were one of the possible reasons for Drago Tokmadzic’s maltreatment in the Keraterm camp.¹⁰⁶⁶ However, during his beating he was asked if there were other policemen detained in the camp. He mentioned the name of Esad Islamovic, who was subsequently called out and beaten at the same time as Drago Tokmadzic. Esad Islamovic was a policeman from Prijedor of Muslim background;¹⁰⁶⁷ it was not alleged that there were any conflicts with him. This shows that it was reasonable for the Trial Chamber to conclude that Drago Tokmadzic was not beaten because of particular conflicts relating to his activities as an active police officer, but because he was regarded as a member of a particular non-Serb group.¹⁰⁶⁸

     (c) The Trial Chamber’s factual findings do not support the conclusion of discriminatory intent (grounds of appeal 40, 36, 38)

465. Zigic submits that the Trial Chamber failed to provide a reasoned opinion for his conviction for persecution. He notes that with respect to the victims from the Omarska Camp, the Trial Chamber concluded that discriminatory intent existed, but that it did not provide an “acceptable explanation” of this conclusion.¹⁰⁶⁹ He raises this issue as a separate ground of appeal¹⁰⁷⁰ and also with regard to his conviction for acts committed against Witness V (ground of appeal 36) and Edin Ganic (ground of appeal 38). The Prosecution submits that the Trial Chamber stated clearly that it would consider whether crimes were committed with a discriminatory intent if “an accused has raised a question as to whether an act was committed on discriminatory grounds”, and that counsel for Zigic did not raise such a question in the Final Trial Brief.¹⁰⁷¹ In reply, Zigic submits that, contrary to the Prosecution submission, he raised the question of his discriminatory intent regarding the relevant charges several times, including a detailed explanation in his closing arguments submitted on 18 July 2001.¹⁰⁷²

466. The Appeals Chamber finds that the reasons given by the Trial Chamber for its finding that Zigic acted with discriminatory intent meet the standard of Article 23(2) of the Statute. The Trial Chamber correctly set out the applicable legal standard . Its findings support the conclusion that the violations of fundamental rights committed in the Omarska, Keraterm and Trnopolje camps were of a discriminatory nature and formed part of a widespread and systematic attack on the non-Serb civilian population of the Prijedor area. Given these general findings, the Appeals Chamber finds that the Trial Chamber could infer Zigic’s discriminatory intent from his acts within the camps. As the Trial Chamber indicated, it was prepared to consider any arguments regarding the question of whether a particular act was committed on discriminatory grounds or without the knowledge or wilful participation of any accused .¹⁰⁷³ Zigic submits the Trial Chamber did not meet this standard, and he claims to have raised this issue several times. The Appeals Chamber notes that Zigic fails to give references as to where he supposedly did so, apart from the reference to his closing arguments submitted on 18 July 2001. Having reviewed these arguments,¹⁰⁷⁴ the Appeals Chamber finds that he submitted only general arguments on the mens rea required for the crime of persecution, but none with regard to particular incidents. As the Trial Chamber has considered his general arguments and given a comprehensive account of the actus reus and mens rea for the crime of persecution, it was, in the absence of any specific argument, not required to elaborate further on this point. The grounds of appeal 36, 38, 40 and 41 thus fail.
     B. Zigic’s conviction for the murder of Becir Medunjanin and the torture of Witness T (grounds of appeal 4, 5, 6, 22 and 23)

467. The Trial Chamber found that Becir Medunjanin arrived in the Omarska camp around 10 June 1992, and that whilst he was interned there he was beaten several times. On one of the following days Zigic and Dusan Knezevic entered the “white house” and beat Becir Medunjanin and Witness T. Due to the beatings inflicted on him on the preceding days, Becir Medunjanin was already in a poor state. The next day, Zigic and Dusan Knezevic beat Becir Medunjanin and Witness T again. As a result of these beatings, Becir Medunjanin was critically injured and died early in the next morning.¹⁰⁷⁵

468. Zigic challenges his conviction for the murder of Becir Medunjanin on three grounds. He claims that there was no reliable evidence that he participated in the murder (ground of appeal 4), that the Trial Chamber erred in considering the testimony of Samir Esefin as an “identifying factor” of the murder (ground of appeal 5), and that the trial was unfair and biased (ground of appeal 6).¹⁰⁷⁶ He gives as an example the testimony by Witnesses Oklopcic and Brkic, both of whom said in previous statements that Zigic had not participated in the murder, but says that, when they were about to talk of this, they were interrupted in the examination -in-chief by the Prosecution.¹⁰⁷⁷

469. During the proceedings on appeal, Zigic was granted leave to file additional evidence in relation to the fatal beating of Becir Medunjanin. The Appeals Chamber heard three witnesses at hearings held at The Hague. The parties presented arguments on 21 July 2004 in respect of the testimonies of these Witnesses before the Chamber. The Appeals Chamber will first consider the grounds of appeal raised by Zigic in his Appellant’s Brief, and then examine the impact of the evidence given by Witnesses KV2, KV3 and KV4 on the Trial Chamber’s factual findings.
     1. There was no reliable evidence that Zigic participated in the murder (grounds of appeal 4 and 5)

     (a) Witness T and Samir Esefin

470. The Trial Chamber based its findings mainly on the evidence of Witness T.¹⁰⁷⁸ Zigic, however, submits that the testimony of this witness should have been dismissed because he was only a hearsay witness.¹⁰⁷⁹ He claims that Witness T did not know him and was only told by Samir Esefin that it was Zigic who took part in the murder of Becir Medunjanin. He argues that there was no evidence to show that Samir Esefin actually witnessed the event.¹⁰⁸⁰ Moreover, Witness T “obviously lied” when he stated that he did not know the other defendants.¹⁰⁸¹ Zigic points out that the Trial Chamber noted the Defence’s objection to the admissibility of Witness T’s testimony but failed to give any reason for rejecting the objection. The Trial Chamber erroneously regarded Samir Esefin as a witness.¹⁰⁸²

471. The Prosecution submits, in reference to Witness T’s evidence, that the mere fact that the witness did not know the first names and last names of the co-accused in the case does not make the witness unreliable, and that the variations in the evidence of Witness T and other witnesses as to the appearance of Zigic “are completely normal” having regard to the fact that they were speaking from memory of an incident which occurred eight or nine years earlier.¹⁰⁸³ The Prosecution submits that the finding of the Trial Chamber that Witness T was reliable and credible was reasonable.¹⁰⁸⁴ Regarding the person known as Esefin, the Prosecution contends that, although the Trial Chamber might have used incorrect terminology in describing this person’s status as that of a witness, no error of fact or law in terms of Article 25 of the Statute has been demonstrated by the Appellant.¹⁰⁸⁵

472. Zigic argues that Witness T relied only on Samir Esefin’s information about the identity of the perpetrator. The Appeals Chamber finds this argument misconceived. When Witness T was asked if he knew who abused him and Becir Medunjanin, he answered that he was told about the identity of Zigic only later:

     Q. Who told you of his identity?

     A. A man called Samir, known as Esefin, he appeared to have known them from before and he told me their names, and others too later; but he was the one. So that I already knew while I was in the “white house.”¹⁰⁸⁶ (emphasis added)

     Witness T noted explicitly that Samir known as Esefin was present during the incident.¹⁰⁸⁷ Contrary to the assertion of Zigic, Witness T did not rely exclusively on Samir known as Esefin to identify Zigic; he stated that the other prisoners in the “white house” also confirmed the identity of Zigic. The reference in paragraph 607 of the Trial Judgement to Samir known as Esefin as a “witness” and to his statement as “testimony” may be technically incorrect, as he was only an observer of the incident, but not a witness at the trial. The Trial Chamber did so in summarizing the argumentation of the Defence, so that there is no reason to suppose the Trial Chamber erred in the qualification of the testimony of Witness T. The technically incorrect wording does not invalidate the argumentation of the Trial Chamber.

     (b) The failure of courtroom identification

473. Zigic attaches much importance to the fact that Witness T was not able to identify him in the courtroom.¹⁰⁸⁸ The Prosecution argues that the Trial Chamber in the Kunarac case suggested that little weight should be placed on dock identification.¹⁰⁸⁹ The Defence replies that this applies to the positive identification of the accused, but not to the failure of a victim to identify the perpetrator in the courtroom.¹⁰⁹⁰ However, to the extent that this is correct, it is to be noted that the same Trial Chamber stated that the failure to identify the accused in court is certainly “a matter which is relevant to the reliability of the evidence of an identifying witness”, but that it did not necessarily destroy any case which might be established otherwise in the evidence.¹⁰⁹¹ In the present case, the issue of identification was raised by the Defence at trial and was noted by the Trial Chamber.¹⁰⁹² The Appeals Chamber finds that it was open to a reasonable trier of fact to rely on Witness T’s testimony despite the witness’ failure to identify Zigic in the courtroom .

474. The assertion of Zigic that Witness T “obviously lied” when he stated that he did not know the other defendants is based on the speculation that Witness T must have known their names, because it was “logical to assume that the Prosecution informed him”.¹⁰⁹³ This speculation without any factual basis cannot stand: The fact that the witness did not know the names of the other defendants does not show that he was unreliable. The Trial Chamber was aware of the inconsistencies of Witness T’s testimony, but found that they were understandable, “considering the content of his testimony and the amount of time that had passed since the event”.¹⁰⁹⁴ The Appeals Chamber finds that the Trial Chamber’s conclusion was reasonable.

     (c) Witness Avdagic

475. Zigic also submits that the Trial Chamber erred in holding that the testimony of witness Fadil Avdagic corroborated the testimony of Witness T. Fadil Avdagic testified that the perpetrator wore gloves, but, according to Zigic, his left hand was wounded and was heavily bandaged so as not to be able to wear a glove at all.¹⁰⁹⁵ Additionally, Fadil Avdagic noted the person had an earring, whereas Zigic submits that he never wore earrings. Zigic argues that the description of the perpetrator provided by Fadil Avdagic did not match his appearance at the relevant time.¹⁰⁹⁶ The Prosecution responds that the Trial Chamber was entitled to rely on the evidence of this witness and that of Witness T to find Zigic guilty for the beating of Witness T and the murder of Becir Medunjanin.¹⁰⁹⁷

476. The Trial Chamber was aware of the differences between the descriptions of Zigic given by Witness T and Fadil Avdagic. In the Final Trial Brief, the Defence had already submitted these arguments,¹⁰⁹⁸ and the Trial Chamber considered them, including the fact that Fadil Avdagic described the hair colour of the person he was watching as “yellowish-reddish”, whereas other witnesses maintained that Zigic had black hair.¹⁰⁹⁹ On the other hand, Fadil Avdagic did identify Zigic in the courtroom and mentioned that the other detainees in the room also identified the person as Zigic.¹¹⁰⁰ The Appeals Chamber finds that it was open to a reasonable trier of fact to rely on Fadil Avdagic’s testimony as corroborating evidence.

     (d) Contradictory evidence

     (i) Witness Oklopcic

477. Zigic argues that the Trial Chamber overlooked many pieces of contradictory evidence, for example, the testimony of prosecution witness Azedin Oklopcic, who gave a detailed description of the incident of the beating and killing of Becir Medunjanin. According to Zigic, the witness testified that Zigic did not murder Medunjanin and was not present during the incident. The Trial Chamber merely mentioned this evidence in a footnote of the Trial Judgement, although, according to Zigic, the witness was considered as credible by the Chamber and testified as an eyewitness. Further, Zigic points out that Azedin Oklopcic made a list of persons most responsible for crimes committed in the territory of the municipality of Prijedor. This list, which was admitted into evidence, did not mention Zigic at all and notably listed Duca Knezevic as the person responsible for killing Medunjanin.¹¹⁰¹ The Prosecution notes that Azedin Oklopcic did not see Medunjanin dying and could give no evidence as to when or how he died, and his evidence regarding the presence of the Appellant could have no weight as it was speculative in nature. The list of names drawn by Oklopcic was not exhaustive, as Oklopcic himself declared.¹¹⁰²

478. The Appeals Chamber notes that when Azedin Oklopcic described the incident during his examination-in-chief by the Prosecution, he stated that he saw Dusan Knezevic enter another room of the “white house”. He then heard moans, groans and screams from this room, and, after some time, Becir Medunjanin came crawling on all fours into the room where Azedin Oklopcic was, followed by Dusan Knezevic who was beating him all the time. The witness then went on to describe how Zeljko Timarac abused a young man named Hankin. Later, Azedin Oklopcic and the other detainees were ordered to run out of the “white house”.¹¹⁰³ A reasonable Trial Chamber could draw from this testimony the conclusion that the witness was not present when Becir Medunjanin died, so that his testimony about the person responsible for the death of Becir Medunjanin was in fact a conclusion, not a statement of what he had seen. This is also a possible explanation why the name Zigic is not mentioned on the list drawn up by Azedin Oklopcic, apart from the fact that Oklopcic himself declared that his list was not exhaustive.¹¹⁰⁴

     (ii) Witness R

479. According to Zigic, the testimony of Witness R in the Tadic trial fully corroborated the testimony of Oklopcic. He quotes from Witness R’s testimony in Tadic to argue that this witness should have appeared as a witness in the present case. At trial, the Prosecution refused to disclose Witness R’s information, and the Trial Chamber refused to have the witness summoned to testify but accepted his statement given in the Tadic case instead. Zigic submits that the Trial Chamber and the Prosecution thus contributed to unfair conditions for the Defence.¹¹⁰⁵ The Prosecution notes that, in the present case, the Trial Chamber admitted the transcript of this witness’s testimony in Tadic at the request of the Defence as an alternative to his giving testimony again. The Prosecution also submits that the admitted transcript contains nothing about Zigic’s presence at the beating of Becir Medunjanin nor about whether the witness knew who the person referred to as Zigic was.¹¹⁰⁶ Zigic replies that the Prosecution prevented the Trial Chamber and the Defence from calling Witness R, and that similar things happened with the potential witness Mesinovic.¹¹⁰⁷

480. The Appeals Chamber finds that the statement of Witness R in the Tadic case (admitted into evidence as exhibit D2/12) does not corroborate the testimony of Azedin Oklopcic. In the statement, as quoted by the Defence, the witness only mentioned that Medunjanin was kicked by Zeljko Timarac and Dusan Knezevic, then kicked out into the corridor, where Zeljko started to abuse him cruelly by jumping on his chest.¹¹⁰⁸ In his testimony Azedin Oklopcic described how Dusan Knezevic beat Becir Medunjanin with a baton. The Appeals Chamber is not satisfied that the statement and Azedin Oklopcic’s testimony refer to the same incident. With regard to witness Mesinovic, Zigic fails to demonstrate the relevance of his evidence.

     (iii) Witness Brkic

481. In addition, Zigic submits that the Trial Chamber overlooked the testimony of Abdulah Brkic, which was minimized and mentioned only in a footnote in the Trial Judgement. Zigic states that the Trial Judgement failed to mention Brkic’s testimony of 21 August 2000, in which he testified that he saw Zigic in the Omarska camp only once and that was one week before the murder of Medunjanin took place. Medunjanin, on the other hand, had been killed by Dusan Knezevic slitting his throat.¹¹⁰⁹ The Prosecution responds that the Trial Chamber correctly placed no weight on Brkic’s evidence that he saw Knezevic slicing Medunjanin’s throat.¹¹¹⁰

482. Although Abdulah Brkic stated he had been told the victim of the incident he witnessed was Becir Medunjanin, he made it clear that he was not sure if this person was actually killed. He testified that he saw Dusan Knezevic inflicting a knife wound on the victim, but could not tell if this wound was lethal. Examined by the Trial Chamber, he responded:

     I do not think that it was a deep wound. It was just a cut here, below the chin, and there was some blood. I don't know whether the wound was lethal and could he die of that wound or what they did to him afterwards. All I know, that after that they simply pulled him out and left him on the grass behind the "white house.”¹¹¹¹

     Witness T gave a detailed account of the death of Becir Medunjanin after his last beating,¹¹¹² whereas Abdulah Brkic did not actually see him die. Witness T did not mention the knife attack, but this is not inconsistent with the testimony of Abdulah Brkic. Witness T stated that he lost consciousness during the incident the day before Becir Medunjanin died.¹¹¹³ The knife attack could have taken place during this last phase. It was therefore not unreasonable for the Trial Chamber to find that the knife wound inflicted by Knezevic was not the direct cause of the death of Becir Medunjanin.

     (iv) Witnesses DD/5 and DD/10

483. In support of his arguments, Zigic relies on the testimony of Witnesses DD/ 5 and DD/10, whose testimony, he argues, was for the most part ignored by the Trial Chamber.¹¹¹⁴ According to Zigic, Witnesses DD/5 and DD/10 both testified that he was not involved in the murder of Becir Medunjanin.¹¹¹⁵ The Prosecution argues that Witness DD/10 could give no direct evidence as to who killed Medunjanin, and that this evidence concerning the identity of the person mentioned in connection with the death was hearsay and nothing more. The Prosecution presumes that Witness DD/10’s evidence was given no weight by the Trial Chamber after consideration and in view of other evidence.¹¹¹⁶

484. The Appeals Chamber notes that Witness DD/5 was biased towards Zigic. For example, this witness described Zigic as a person who was basically friendly to the detainees, who shouted at them because of his pain, but was never aggressive.¹¹¹⁷ This witness testified that he had never seen Zigic in the Omarska camp and that he was quite sure Zigic had never been there. This attitude of Witness DD/5 may be explained by the fact that Zigic helped Witness DD/5 and his brothers in the Keraterm camp.¹¹¹⁸ Considering the amount of evidence confirming the aggressive behaviour of Zigic and his visits to the Omarska camp, the Appeals Chamber finds that it was not unreasonable for the Trial Chamber to disregard the evidence given by Witness DD/5.

485. Witness DD/10 testified during the trial as follows:

     A. Well, all I can say is what I heard, because from the place that I worked, I could not see anything. I could only listen to people who came with such information. So I remember a comment or two from a man who worked for the security, whether they were two inspectors, I cannot really be specific. And I heard from them the story, and they emphasised that the "white house," the "white house" was now lighter by two of its inhabitants. And then in the story, they also mentioned a man who could have done that.

     Q. And was a name mentioned?

     A. Of course. In that conversation, that is what I tried to hear, really, who could have done it, yes. The name, the full name, the first and the last name were mentioned . One Duca Knezevic's name came up. That is what I heard. I only heard that.¹¹¹⁹

     It was not unreasonable for the Trial Chamber to disregard the evidence of a witness who “tried to hear” a conversation, and who heard in this conversation a name mentioned, without giving any more details about the conversation.

     (e) Application of the Kupreskic standard

486. Zigic submits the Appeals Chamber should apply the standard on identification evidence as set out in Kupreskic.¹¹²⁰ In Kupreskic et al., the Appeals Chamber held that “a Trial Chamber must always, in the interests of justice, proceed with extreme caution when assessing a witness’ identification of the accused made under difficult circumstances.”¹¹²¹ In the present case, the identification of Zigic does not rest on one witness only, and the witnesses’ observations were not made under particularly restricted conditions : the witnesses could watch Zigic for some time from close proximity. Their identification of the person they watched was confirmed by a large number of detainees in the same room.

487. In conclusion, there was reliable evidence supportive of a conviction, whereas the contradicting evidence was not of such a nature that it necessarily prevented a conviction. The Appeals Chamber finds that a reasonable trier of fact could arrive at the conclusion that Zigic was liable for the fatal beating of Becir Medunjanin. Grounds of appeal 4 and 5 are dismissed.
     2. The additional evidence

488. The Appeals Chamber now examines the additional evidence. By the decision of 16 February 2004, the Appeals Chamber granted a part of the motions of Zigic pursuant to Rule 115 of the Rules and ordered additional witnesses to appear. One of them, Witness KV2, testified as a Court witness by videolink conference on 19 July 2004 about the fatal beating of Becir Medunjanin. By the decision of 12 March 2004, the Appeals Chamber found the evidence of two witnesses admissible as rebuttal material concerning the fatal beating of Becir Medunjanin. These witnesses, KV3 and KV4, testified by videolink conference on 20 and 21 July 2004.

     (a) Witness KV2

489. Witness KV2, who had been called as a Court witness, stated he had been in the “white house” when Becir Medunjanin was killed. His throat had been cut; Witness KV2 had seen his body lying in front of the “white house”. Becir Medunjanin had been brought to the “white house” with his wife and his son, and they had been beaten before this; the witness could see the bruises on their faces. Becir Medunjanin had then been called out by a group of soldiers, and they started beating him. Witness KV2 could not see the beating, he could only hear it. When he left the “white house ” with other detainees, he saw Becir Medunjanin’s body lying in a puddle of blood .¹¹²²

490. When the witness was asked by Defence counsel if he still stood by his earlier statement given to the Prosecution that Zigic did not participate in the beating of Becir Medunjanin, the witness answered in the affirmative.¹¹²³

491. Cross-examined by the Prosecution, Witness KV2 stated he had only heard the beating, as it took place in the hall in front of the room where Witness KV2 was then detained. The guards had ordered the detainees in this room to face the wall and not to watch. Afterwards the detainees were ordered out of the house, and had to pass by the body of Becir Medunjanin lying in the hall. Outside, the detainees were ordered to face the asphalt of the “pista” so that Witness KV2 could not see what happened next. He had seen a wound on the neck of Becir Medunjanin, but could not tell who had inflicted this wound.¹¹²⁴

     (b) Witnesses KV3 and KV4

492. Witness KV3 stated he had been in the “white house” when Zigic entered it with two other persons, Duca and Saponja. Witness KV3 knew Zigic as a taxi-driver from Prijedor. He recognized his face, and other prisoners in Omarska said “take care, Ziga is coming” when Zigic entered the “white house”. Zigic, Duca and Saponja asked for Becir Medunjanin, ordered the detainees into another room and told them when they were in the other room to face the wall. Witness KV3 thought they were then beating Becir Medunjanin, as he heard the sounds of a beating, but could not see directly what was going on. The detainees were then ordered out of the “white house”, and on their way out they saw the body of Becir Medunjanin lying in one of the rooms.¹¹²⁵ Witness KV3 also saw Becir Medunjanin’s wife in the “white house”.¹¹²⁶ He did not see any other beating of Becir Medunjanin.¹¹²⁷

493. Witness KV4 stated that around 20 June 1992, he was ordered with other detainees into the “white house”. There he saw Becir Medunjanin and his wife Sadeta in a room to the left of the entrance. Afterwards, two persons entered the “white house”. One of them was Zigic, whom Witness KV4 knew as a taxi-driver from Prijedor. The other person he did not know, but other detainees told him his name was Duca. Witness KV4 saw Becir Medunjanin thrown out of the room, then he was beaten by Zigic and Duca with a baton and a cable. After a while, Becir Medunjanin did not move any more. Blood was gushing out of his neck, although Witness KV4 could not see a wound . A guard ordered the detainees out of the “white house”. Witness KV4 did not see Becir Medunjanin after this incident. He heard rumours that he had disappeared.¹¹²⁸

     (c) Discussion

494. Zigic argues that the rebuttal witnesses’ testimony was in clear contradiction to the evidence given by Witness T and Fadil Avdagic. Witness KV2, although he had been in touch with the Prosecution, had confirmed that Zigic did not participate in the beating of Becir Medunjanin. Zigic submits that, had he in fact been the main perpetrator, he could not have remained unnoticed by Witness KV2.¹¹²⁹ He argues that both Witness KV3 and Witness KV4 failed to identify Zigic on photo boards shown to them by the Prosecution, had given contradictory evidence and had made up the presence of Sadeta Medunjanin during the fatal beating, who, according to the Trial Judgement, had left the “white house” on an earlier occasion.¹¹³⁰

495. The Prosecution submits that the rebuttal witnesses actually strengthened the case against Zigic. Considering the particular circumstances of their stay in Omarska camp and the considerable lapse of time since these events, any minor inconsistencies in their testimony were understandable and irrelevant. The main elements of Zigic’s participation in the fatal beating of Becir Medunjanin had been confirmed by both witnesses.¹¹³¹

496. The Appeals Chamber is convinced that the additional evidence presented by Witness KV2 does not have any impact on the Trial Chamber’s findings. Although Witness KV2 reaffirmed his earlier statement to the Prosecution that he had not seen Zigic participating in the beating of Becir Medunjanin, this evidence does not have high probative value. The beating of Becir Medunjanin had not taken place in the room where Witness KV2 was detained, and, moreover, Witness KV2 had been ordered with the other detainees to face the wall so that he could not watch what was going on in the corridor. Witness KV2 therefore did not see the actual beating, but could only hear it. He could not exclude the possibility that Zigic joined the other persons beating Becir Medunjanin at a moment when Witness KV2 had no visual contact with the location of the beating.

497. According to the Trial Judgement, Becir Medunjanin was beaten on several occasions. Two of these beatings took place in the “white house”.¹¹³² There is even the possibility that beatings took place which were not noticed by Witness T. Nothing in the testimony of Witness KV2 indicates when the beating he described took place or that he had seen the last or fatal beating. This applies also to the fact that it was raining on this day; according to Fadil Avdagic, it rained every day during this period.¹¹³³ Considering these circumstances, the Appeals Chamber is convinced that the additional evidence of Witness KV2 does not raise any doubts as to the finding that Zigic participated in the beatings of Becir Medunjanin and was therefore responsible for his subsequent death.

498. The Appeals Chamber finds that Witness KV2’s evidence does not support Zigic’s case. Therefore, there is nothing to rebut. However, assuming the evidence given by Witness KV2 supported Zigic’s claim that he did not take part in the fatal beatings of Becir Medunjanin, the Appeals Chamber would have to consider this evidence in the light of the testimony of the rebuttal Witnesses KV3 and KV4. Both of them stated they had seen Zigic entering the “white house” prior to the beating. Their description of the beating matched closely the testimony of Witness KV2.¹¹³⁴ Both witnesses stated clearly that they recognized Zigic at the time of the events, and that their identification of the person maltreating Becir Medunjanin as Zigic, the taxi-driver from Prijedor, was confirmed by other detainees in the same room.¹¹³⁵ The Appeals Chamber finds that their testimony is not incompatible with the evidence on the Trial Record. Zigic argues that their mentioning of Becir Medunjanin’s wife Sadeta shows that they were unreliable because Witness T had stated that Sadeta Medunjanin had been transferred to the administration building a few days before the last beating of Becir Medunjanin. This is not necessarily a contradiction: both witnesses described only one of several beatings, and, as Zigic correctly pointed out, Witness KV4 stated that he saw Becir Medunjanin unconscious but not dead after the beating.¹¹³⁶ It is therefore possible that they described a beating several days before the last beating, when Sadeta Medunjanin was still detained in the “white house”.

499. In summary, the evidence given by Witness KV2 did not show that the Trial Chamber erred in its finding that Zigic participated in the fatal beating of Becir Medunjanin. Even if the testimony of Witness KV2 had affected the Trial Chamber’s finding, it would have been effectively rebutted by the testimony of Witnesses KV3 and KV4.
     3. The fair trial issue (ground of appeal 6)

500. Zigic also submits that the Trial Chamber violated his right to a fair trial pursuant to Article 21 of the Statute. The alleged violation occurred when, after Witness T had been questioned by the Prosecution twice as to whether he could identify Zigic in the courtroom, the Presiding Judge of the Trial Chamber took over the questioning and asked the witness the same question for the third time. When Zigic objected in court, the Presiding Judge did not allow the objection, which, Zigic submits, constituted a denial of the right to object in an obviously unfair situation.¹¹³⁷ Zigic argues that the Trial Chamber was biased and treated the facts in favour of Zigic differently from those in favour of conviction. He refers to Witness T’s failure to identify Zigic in the courtroom, Zigic being the person he alleged had beaten him over a period of two days. He does not find credible the Trial Chamber’s explanation that the witness’ inability to identify him can be characterized as a “confusion of minor details” ¹¹³⁸ Additionally, Witness T remained at Omarska until the camp ceased to exist but never saw again the person he thought was Zigic. Zigic submits that this is inconsistent with the Trial Judgement, which stated that Zigic was constantly present in the camp. Zigic claims that his conviction for murder did not meet the standard set out in the Celebici Appeal Judgement, where the Appeals Chamber stated that “an accused person should not be convicted upon the basis of a verbal ambiguity in the vital evidence.”¹¹³⁹ Zigic also points to the treatment of Witness DD/10 and Abdulah Brkic’s testimony as another instance of the Trial Chamber’s bias against information tending to exculpate him. He describes an episode in which the Trial Chamber interrupted Defence cross-examination of Abdulah Brkic regarding the murder of Medunjanin and later failed to take into account his written statement that Knezevic and not Zigic slit the throat of and killed Medunjanin.¹¹⁴⁰ Finally, Zigic submits that both the Prosecution and the Trial Chamber created unfair conditions for his Defence, because they prevented him from calling Witness R to testify by not revealing Witness R’s address.¹¹⁴¹

501. The Prosecution responds that the allegation of bias is unfounded as the relevant parts of the Trial Judgement contain numerous references to Defence arguments and evidence in relation to the Appellant’s liability for various incidents.¹¹⁴² The Prosecution also argues that the Trial Chamber was not prevented from considering particular parts of a witness’ testimony in support of a guilty verdict and that the specific instance of Witness DD/10 is not supportive of Zigic’s argument, in that the testimony contained hearsay in relation to the murder of Becir Medunjanin and was duly considered as not probative by the Trial Chamber.¹¹⁴³

502. With regard to Witness R, Zigic fails to demonstrate how the statement of this witness could have influenced the Trial Chamber. As the Appeals Chamber noted above,¹¹⁴⁴ there are important differences between the testimony of Azedin Oklopcic and Witness R. It is unclear whether Witness R knew Zigic at all, and whether he was – during his hearing at the Tadic trial – asked about Zigic’s presence at the incident. Zigic has therefore failed to identify an error invalidating the decision.

503. The questioning of Witness T does not indicate any bias of the Trial Chamber. The transcript shows that the witness at first stated that he was able to identify Zigic among the accused, and the ensuing questions of the Prosecution and the Presiding Judge were clearly meant to clarify the issue.¹¹⁴⁵ From the transcript it is not clear if the witness did not identify Zigic at last ; even at the end of the hearing, the witness still maintained that he was able to identify Zigic in a group of people.¹¹⁴⁶ Under these circumstances, it was legitimate for the Trial Chamber to insist on the matter when it felt that further clarification was required.

504. With regard to the interruption of the questioning of Abdulah Brkic about the death of Becir Medunjanin, the Defence admits that the Trial Chamber corrected the alleged error by allowing the questions the next day.¹¹⁴⁷ Zigic argues that this interruption gave the Prosecution the opportunity to contact the witness, and the Appeals Chamber understands the suggestion to be that Abdulah Brkic was influenced by the Prosecution. However, Zigic gives no factual basis for this speculation. He does not establish that the decision of the Trial Chamber not to allow the question was erroneous. During his examination-in-chief, Abdulah Brkic never mentioned the name of Becir Medunjanin. Cross-examined by Zigic’s Counsel, he stated that he did not know Becir Medunjanin, but that he had heard about his fate.¹¹⁴⁸ When Zigic’s Counsel asked about more details about Becir Medunjanin’s fate, the Prosecution objected. The Trial Chamber did not allow the question and ordered Zigic’s Counsel to confine his questions to the subject of the examination-in-chief.¹¹⁴⁹ The Appeals Chamber finds that, as the question concerning Becir Medunjanin was asked during the cross-examination and had no relation to the examination-in-chief, the Trial Chamber’s decision was correct.¹¹⁵⁰ When the Trial Chamber later allowed the additional question, it did not acknowledge an error, but did so in exercise of its discretion in the interest of the administration of justice.¹¹⁵¹

505. As far as Zigic points to the factual findings of the Trial Chamber in support of his allegations of unfairness and bias, his arguments fail: As shown above, it was not unreasonable for the Trial Chamber to assess the evidence as it did. Even if the assessment of the evidence was incorrect, the incorrectness does not show bias on the part of the Trial Chamber. The Appeals Chamber finds that there is no basis for the assumption of unfairness or bias. This ground of appeal fails.
     4. Conviction for the torture of Witness T (grounds of appeal 22 and 23)

506. Zigic submits that there was no reliable evidence to show that he participated in the torture of Witness T.¹¹⁵² He claims that he was not at the crime scene when the torture took place. As the Judgement found that the torture of Witness T and the murder of Becir Medunjanin occurred at the same time and place, Zigic relies on his arguments regarding the murder of Becir Medunjanin to prove his absence from the scene of torture.¹¹⁵³ His ground of appeal 23 is to be understood “(a(s grounds of appeal No. 5 and No. 6, mutatis mutandis”.¹¹⁵⁴

507. As Zigic does not advance any independent arguments with regard to these grounds of appeal, and relies exclusively on the arguments the Appeals Chamber considered in the preceding sections, these grounds of appeal fail for the same reasons.
     C. Zigic’s conviction for the murder of Emsud Bahonjic (grounds of appeal 7, 8 and 9)

508. Zigic challenges his conviction for the murder of Emsud Bahonjic for the following reasons: (i) there is no reliable evidence that he committed the murder (ground of appeal 7); (ii) the Trial Judgement shows no causal connection between the death of Bahonjic and Zigic’s acts and mens rea (ground of appeal 8); and (iii) the Trial Chamber was not impartial in assessing the charge of the murder of Bahonjic (ground of appeal 9).¹¹⁵⁵
     1. There is no reliable evidence that he committed the murder (ground of appeal 7)

509. The Appeals Chamber understands that, in this ground of appeal, Zigic maintains that the Trial Chamber committed an error of fact when finding that he took part in the fatal beating of Emsud Bahonjic.

     (a) Witness N

510. Zigic submits that his conviction was based on the testimony of Witness N, who claimed that Zigic was one of many persons who beat Emsud Bahonjic for many days and that Bahonjic died many days after. He claims that the Trial Chamber did not analyze the evidence before accepting it. He further argues that this testimony did not show that he was a co-perpetrator of the murder rather than the beating, and that it failed to prove beyond reasonable doubt that the beating directly resulted in Bahonjic’s death.¹¹⁵⁶ He submits that Witness N is unreliable because he was the only witness to connect the beatings of Emsud Bahonjic and Sead Jusufagic.¹¹⁵⁷ He also argues that Witness N falsely claimed that he recognised Zigic in Keraterm by a scar on his face, as Zigic proved that the scar was caused by an injury after the Keraterm camp had been closed.¹¹⁵⁸ He considers that the witness was not credible for a number of reasons: these included his allegation that Bahonjic was arrested by Serbian authorities at the beginning of June 1992, as a member of the Yugoslav police force, whereas that police force no longer existed in the area of Kozarac by May 1992.¹¹⁵⁹ In addition, Zigic argues that the witness falsely stated that Emsud Bahonjic did not receive any medical treatment, although Bahonjic had been brought to a hospital after the beating.¹¹⁶⁰

511. The Prosecution responds that the Trial Chamber rejected Zigic’s challenges to the credibility of Witness N, and that the “reliable medical documentation” referred to by Zigic did not record Bahonjic’s condition when he was returned to the camp from the hospital. The Prosecution adds that the only treatment Bahonjic received at the hospital consisted of bandaging of his knee, which was a “grossly inadequate treatment” of his injuries, and that the Defence did not ask the witness at trial if Bahonjic’s knee was bandaged. Further, the Prosecution submits that the reference to Witness N’s recollection of Bahonjic’s membership in the Yugoslav Police Force in May 1992 was not related to any issue at trial and does not derogate from his testimony about what he saw Zigic do to Bahonjic.¹¹⁶¹

512. The Appeals Chamber understands that, in this ground of appeal, Zigic challenges the factual findings of the Trial Chamber. The Trial Chamber relied for its findings mainly on the testimony of Witness N and the corroborating evidence given by Witness AE. It is correct that this witness is the only one who mentioned that there was one incident when Sead Jusufagic and Emsud Bahonjic were maltreated at the same time. However, Witness N gave by far the most comprehensive account of this incident and mentioned details other witnesses omitted (for example, the fact that Jusufagic was made to dismantle the machine-gun he had been forced to carry earlier). No other witness was asked if during the incident with the machine-gun Emsud Bahonjic was also present. The statement that Emsud Bahonjic and Sead Jusufagic were mistreated at the same time therefore is not irreconcilable with the other evidence before the Trial Chamber.

513. Zigic argues further that the witness is unreliable because he claimed that Emsud Bahonjic did not receive medical attention at the hospital. For the treatment received by Emsud Bahonjic in the hospital, Zigic relies on the evidence given by Dr Mirko Barudzija. This witness had no direct contact with Emsud Bahonjic, and his testimony was based exclusively on the documentation in the hospital,¹¹⁶² which was apparently not even complete.¹¹⁶³ The Appeals Chamber concurs with the Prosecution that a reasonable Trial Chamber could arrive at the conclusion that the medical attention Emsud Bahonjic received there after several violent beatings – a knee bandage – was grossly inadequate and that the witness was entitled to consider this as no treatment at all.

514. The details on which Zigic relies to demonstrate the unreliability of Witness N, such as Zigic’s scar or the incorrect designation of the police force to which Emsud Bahonjic belonged, do not affect the core of Witness N’s testimony and did not prevent a reasonable trier of fact from relying on it.

     (b) Witness Taci

515. Zigic argues that the evidence of witness Safet Taci should be excluded from the Trial Judgement as he was a hearsay witness and did not see Zigic beating Bahonjic.¹¹⁶⁴ The Prosecution responds that the Trial Chamber inferred from evidence that witness Taci had heard from the victim Bahonjic himself about the danger of death the latter feared if he saw Zigic again, and that Zigic has not demonstrated that it was not open to the Trial Chamber to draw such an inference.¹¹⁶⁵

516. The Appeals Chamber notes that the Trial Chamber used the testimony of Safet Taci as corroborating evidence. Even if he did not mention the first name of Emsud Bahonjic, he spoke about a person named Bahonjic who was detained in room 2. Other witnesses confirmed that Emsud Bahonjic was detained in room 2, and Zigic failed to show that any other people with this surname were detained in this room at this time. A reasonable trier of fact could arrive at the conclusion that Safet Taci was speaking about Emsud Bahonjic.

     (c) Witnesses AD, AE, Hase Icic and Ervin Ramic

517. Zigic submits that the other witnesses who were called by the Prosecution did not support his conviction for the murder of Emsud Bahonjic. Witness AE stated that many people beat Bahonjic besides the Appellant, and was moreover not able to identify him in the courtroom. Zigic recalls that Witness AD claimed at trial that he never saw Zigic beating Bahonjic. Zigic also challenges the credibility of the testimony of Hase Icic and Ervin Ramic.¹¹⁶⁶

518. The Trial Chamber referred to the testimony of Witness AE as corroborating the evidence given by Witness N. The Appeals Chamber notes that Witness AE stated in fact “[m]any people came to beat [Emsud Bahonjic],” as he was quoted by Zigic. But Zigic omits the continuation: “but Knezevic and Zigic stood out.”¹¹⁶⁷ The fact that Witness AE could not identify Zigic in the courtroom was considered by the Trial Chamber and implicitly rejected. The Appeals Chamber finds a reasonable trier of fact was entitled to do so.¹¹⁶⁸

519. It is also correct that Witness AD did not see the beating of Emsud Bahonjic by Zigic. However, the witness stated that Emsud Bahonjic himself, whom the witness knew very well, told him after the incident that it was Zigic who had beaten him .

520. Zigic argues that Hase Icic and Ervin Ramic were unreliable because they stated that Zigic had been in the Keraterm camp almost every day, although he had in fact been absent for several days during the period in question. Even if this was the case, the expression “every day” may be used in a broader sense, meaning not literally every day, but rather frequently or almost every day. An inaccuracy of this type does not necessarily affect the reliability of a witness, and a reasonable trier of fact still can accept his or her evidence.

521. Ervin Ramic only saw Zigic during the first beating of Emsud Bahonjic. The next days, he heard Zigic calling Emsud Bahonjic out; when Emsud Bahonjic returned, he was in a terrible state, all black and blue.¹¹⁶⁹

522. Hase Icic stated he did not see Zigic beating Emsud Bahonjic, but he heard Zigic calling him out. After that, Hase Icic heard the noise of beating, screaming and cursing, accompanied by Zigic’s prominent voice. Half an hour later, Emsud Bahonjic was brought back, practically unable to move. Finally, Zigic argues that the witness had “made up” a “story” about a young Albanian, which was inconsistent with the account Witness AE gave of this incident.¹¹⁷⁰ The Appeals Chamber notes that Hase Icic mentioned incidentally a young Albanian who was called out of room 2 and never returned.¹¹⁷¹ It is not even clear if this is the same person Witness AE mentioned when he recalled a young Albanian taken out and beaten by the Banovic brothers over several days;¹¹⁷² in any case, the two accounts do not contradict each other.

523. The Appeals Chamber therefore finds that a reasonable trier of fact could rely on the testimonies of Ervin Ramic and Hase Icic to corroborate the evidence given by Witnesses N and AE.

     (d) Defence witnesses

524. Zigic argues that the testimony of six witnesses for the Defence, including one expert witness, was completely ignored by the Trial Chamber in the Trial Judgement. He submits that these witnesses deserved full attention as they were three detainees in Keraterm, two guardsmen in Keraterm (one of whom was indicted by the Tribunal for the same crime) and one medical doctor who worked in the hospital where Emsud Bahonjic was treated.¹¹⁷³

525. The Prosecution submits that three of the six witnesses mentioned by Zigic gave evidence that was irrelevant to the beating to death of Bahonjic,¹¹⁷⁴ that, under the Rules and jurisprudence of the Tribunal, it is open to the Trial Chamber to admit or reject expert opinion, that one witness’s evidence was unclear as to whether he saw Zigic beating Bahonjic, and that the evidence of the sixth witness could not affect the overwhelming weight of the evidence in favour of the Prosecution case.¹¹⁷⁵ The Prosecution also submits that the evidence was overwhelming in favour of the Prosecution case on this count, and concludes that no bias appeared in the failure of the Trial Chamber to explain details of the evidence of the six witnesses the Appellant claims to have been ignored by the Chamber.¹¹⁷⁶

526. As the Appeals Chamber has already noted, the testimony of Dr Mirko BarudZija was based on apparently incomplete hospital records. In addition, it should be noted that even this witness stated the diagnosis status febrilis and dehidratio he found in the documentation “would indicate a serious clinical state. The patient had a high temperature, he was dehydrated, which probably constituted a very serious state, very serious condition.”¹¹⁷⁷

527. Witness DD/2 had seen Emsud Bahonjic being beaten once, but did not know about his later fate; he even did not know whether Bahonjic died.¹¹⁷⁸ Witness DD/5 did see beatings in which Zigic did not participate, but he had left the Keraterm camp before Emsud Bahonjic died.¹¹⁷⁹ Jugoslav Gnjatovic saw Emsud Bahonjic only when he was already dead.¹¹⁸⁰ Witness DD/9 did not know Emsud Bahonjic, he had only heard about him once. He did not know what happened to him.¹¹⁸¹ The Appeals Chamber finds that any reasonable trier of fact could disregard these witnesses, as their testimony was irrelevant to the essential findings.

528. Witness DD/6 in fact gave a different account of Emsud Bahonjic’s death. He stated that Emsud Bahonjic was beaten after an escape attempt by members of the Territorial Defence; the witness learned about his death later.¹¹⁸²

529. The testimony of Witness DD/6 is in fact the only testimony in direct contradiction to the accounts of Witness N and the corroborating witnesses the Trial Chamber relied on. Although the Trial Chamber does not give any explanation, it is clear from its decision that it disregarded the evidence of Witness DD/6 and preferred the account given by Witness N. The Appeals Chamber finds that Zigic has not demonstrated that no reasonable trier of fact could arrive at the conclusion that he actually took part in the fatal beatings of Emsud Bahonjic. Contrary to his assertion, he did not show that the testimony of Witness N and the corroborating evidence were so unreliable that they were not a valid basis for his conviction. Also when the evidence of the Defence witnesses – including Witness DD/6 – is considered, it was open to a reasonable trier of fact to find that Zigic participated in the fatal beatings.

530. The Appeals Chamber therefore has only to determine if the failure of the Trial Chamber to give the reasons for this part of the decision is an error of law. Zigic does not rely on this failure in this context as a separate ground of appeal. The Trial Chamber pointed out the evidence it was relying on, and even quoted the essential parts of this evidence. It failed only insofar as it did not explain why it disregarded the testimony of Witness DD/6. The Appeals Chamber finds that this failure does not invalidate the decision. This ground of appeal fails.
     2. The Trial Judgement shows no causal connection between the death of Bahonjic and Zigic’s acts and mens rea (ground of appeal 8)

531. Zigic argues that the Trial Chamber did not explain the issue of mens rea in relation to the acts of which he was accused, and that this lack of explanation alone would render the conviction unsafe. He claims that there is no detail as to when and how severely he beat the victim, whether others had also beaten the victim after Zigic, when the victim died, and who delivered the fatal blows.¹¹⁸³

532. The Appeals Chamber understands Zigic’s submission in this ground of appeal to be that the Trial Chamber committed an error of fact, because the factual findings of the Trial Chamber do not support his conviction for the murder of Emsud Bahonjic . In this context, Zigic submits that the Appeals Chamber should apply the standard of the Celebici Appeal Judgement.¹¹⁸⁴ In Celebici, the Trial Chamber had established that there had been two beatings, and that the death of the victim was a result only of the second beating, whereas the first beating did not cause his death. The question for the Appeals Chamber arose whether it had been established that the accused had taken part in the second beating.¹¹⁸⁵ In the present case, the Trial Chamber found that Emsud Bahonjic died from the cumulative effects of several beatings, and that Zigic participated in several of these beatings.¹¹⁸⁶ The factual finding that Emsud Bahonjic died from the cumulative effects of these beatings is adequately supported by the evidence quoted by the Trial Chamber. As a participant in several of these beatings, Zigic is liable as a co-perpetrator for the death of Emsud Bahonjic.

533. With regard to mens rea, the Trial Chamber did not explicitly state that Zigic acted with the intent to kill Emsud Bahonjic. The Trial Chamber found that Zigic asked Emsud Bahonjic, after he had called him out, “Will I have to feed your children?”, and that the violent beatings continued even after Emsud Bahonjic was in such a critical condition that he could hardly walk. From these circumstances a reasonable trier of fact could conclude that Zigic participated in the beatings, that he did so in the knowledge that his acts might lead to the death of Emsud Bahonjic, and therefore acted with general intent. This ground of appeal therefore fails.
     3. The Trial Chamber was not impartial in assessing the charge of the murder of Bahonjic (ground of appeal 9)

534. Zigic refers explicitly to the same arguments he used to support his ground of appeal 7.¹¹⁸⁷ As this ground of appeal failed, and as Zigic does not submit any independent argument for the alleged partiality of the Trial Chamber, the Appeals Chamber finds that this ground of appeal also has no merit.
     D. Zigic’s conviction of murder of Sead Jusufagic (grounds of appeal 10, 11 and 12)

535. Zigic challenges his conviction for the murder of Sead Jusufagic in the Keraterm camp on the following grounds: (i) there is no reliable evidence that he committed the murder (ground of appeal 10); (ii) the Trial Judgement shows no causal connection between the death of Sead Jusufagic and Zigic’s acts and mens rea (ground of appeal 11); and (iii) the Trial Chamber was not impartial in assessing the evidence about the murder of Sead Jusufagic (ground of appeal 12).

536. Zigic claims that the testimony of Witness N and Ervin Ramic was unreliable as there were numerous inconsistencies with the evidence given by other witnesses.¹¹⁸⁸ Zigic further claims that the Trial Judgement made no reference to the many witnesses who testified that he did not kill Jusufagic or was not involved in the beating.¹¹⁸⁹ Zigic argues that there was “no actus reus or mens rea elements with respect to causal relation between Zigic’s acts and the death of Sead Jusufagic”.¹¹⁹⁰ Zigic believes that the Trial Chamber ignored 90 percent of the Defence evidence, and held him guilty of the murder of Sead Jusufagic, known as “Car”, on the basis of insignificant parts of the evidence which supported his conviction.¹¹⁹¹

537. The Prosecution responds that the Trial Chamber was entitled to prefer the evidence of three witnesses, including Witness N and Abdulah Brkic, to that of Witness DD/5 which might mitigate Zigic’s guilt.¹¹⁹² Although the Appellant maltreated Jusufagic, he claims that he is not guilty of his murder. The Prosecution submits that the accepted evidence supplies both actus reus and mens rea necessary to establish Zigic’s complicity in the crime.¹¹⁹³

538. The Appeals Chamber acknowledges that the evidence quoted by the Trial Chamber is not free from contradictions: on the one hand, the Trial Chamber quoted Zigic’s unsworn statement that he admitted one kick, and that this account was confirmed by several witnesses; on the other hand, it quoted witness Ervin Ramic, who had testified that Zigic maltreated Sead Jusufagic on several occasions, kicking him and asking him if he was still alive. From the references in the Trial Judgement it is clear that the Trial Chamber was aware of the contradicting evidence. In the light of the conclusion of the Trial Chamber that Zigic is responsible for Sead Jusufagic’s death,¹¹⁹⁴ however, it is clear that the Trial Chamber preferred the evidence supporting Zigic’s conviction to the Defence evidence.

539. Ervin Ramic recounted the incidents which led to the death of Sead Jusufagic (also known as “Car”) as follows:

     And Duca then arrived and Zoran, Zoran Zigic. They entered a room, and they started beating Car. They beat him for about half an hour, and Car lost consciousness. After that, Zoran Zigic came back on several occasion, kicking him and saying, “Are you still alive, balija?” After that, they left him lying there, and the next day Car died. He was taken out and left by the container.¹¹⁹⁵

     The Appeals Chamber finds that a reasonable trier of fact could rely on this evidence to find that Zigic severely beat Jusufagic several times.¹¹⁹⁶ Zigic’s general intent to kill Jusufagic could be inferred from Zigic’s address to his victim: “Are you still alive?” Zigic’s use of the highly derogative term “balija” strongly indicates his discriminatory intent. Therefore, the Appeals Chamber finds that a reasonable trier of fact could conclude that Zigic was criminally responsible for Sead Jusufagic’s murder.

540. As an additional ground of appeal, Zigic submitted that the Trial Chamber was not impartial in assessing the evidence about the murder of Sead Jusufagic (ground of appeal 12). However, in view of the preceding analysis, the Appeals Chamber finds that this ground of appeal is without merit.
     E. Zigic’s conviction for the murder of Drago TokmadZic (grounds of appeal 13, 14, 15, 16 and 17)

541. Zigic challenges his conviction for the murder of Drago Tokmadzic in the Keraterm camp. The Trial Chamber found

     Edin Ganic witnessed Drago Tokmadzic being beaten. While Zigic beat Edin Ganic, Zigic warned him that he had to be careful or he might end up “like that pig,” pointing at Drago Tokmadzic. Zigic then instructed Goran Lajic to “finish that off” and Goran Lajic continued to beat Drago Tokmadzic.¹¹⁹⁷

     After the beating, Drago Tokmadzic was returned to his room; fifteen minutes later he died of his injuries.

542. As the Appeals Chamber understands Zigic’s arguments, he submits that the Trial Chamber (i) committed an error of fact when finding him liable for the death of Drago Tokmadzic (grounds of appeal 13, 14 and 15), (ii) committed an error in law when qualifying his participation in the beating as co-perpetration of murder, ( iii) was not impartial when assessing the evidence (ground of appeal 16), and (iv ) erred in the application of Articles 3 and 5 of the Statute (ground of appeal 17).

543. During the proceedings on appeal, Zigic was granted leave to file additional evidence in relation to the fatal beating of Drago Tokmadzic.¹¹⁹⁸ The Appeals Chamber heard Witness KV1 as a Court witness on 23 March 2004. The Appeals Chamber will first consider the alleged factual error raised by Zigic in his Appellant’s Brief, and then examine the impact of the testimony of Witness KV1 on the Trial Chamber’s factual findings.
     1. There was no reliable evidence that Zigic committed the murder (grounds of appeal 13, 14 and 15)

     (a) Unreliability of Witnesses Y and Edin Ganic

544. Zigic submits that the Trial Chamber failed to take into consideration the testimony given by eleven witnesses, but held him guilty for the crime based on the evidence given by two contradictory witnesses, namely, Witness Y and Ganic, without giving explanation, or even taking notice, of the contradictions.¹¹⁹⁹ Zigic argues that the Trial Chamber identified him as the perpetrator of the murder only by evidence regarding the reflection of headlights on the ceiling, mentioned in the evidence of Witness Y.¹²⁰⁰ Witness Edin Ganic, on the other hand, testified that, while Zigic was beating the witness, he instructed Goran Lajic to “finish that off”, which, Zigic claims, shows that he was not involved in the beating of Tokmadzic and therefore he could not be a co-perpetrator of the murder. Zigic also claims that the phrase “finish that off” was ambiguous; therefore he could not be convicted based on this phrase. He argues that his instruction to “finish off” Tokmadzic meant to end the beating, not to kill him.¹²⁰¹ Edin Ganic also stated that Zigic, Lajic, Banovic and others were undisguised and present the whole evening when committing a series of beatings, whereas Witness Y described the perpetrators as soldiers wearing masks and gloves.¹²⁰² Zigic claims that Witness AE did not know who killed Tokmadzic.¹²⁰³ He submits that Edin Ganic’s testimony cannot be trusted, as his evidence was fabricated. He points out that Ganic had already left the camp when Tokmadzic was killed, the exact date of Tokmadzic’s death being confirmed by medical evidence.¹²⁰⁴

545. Having regard to the Defence evidence presented at trial, the Prosecution argues that the Trial Chamber was entitled to prefer the evidence of Witness Y to that of all of the Defence witnesses, as “(i(t defies normal human experience that so many witnesses could recall the actual date of death of one particular prisoner at Keraterm, eight or nine years after the event, when dozens of others died in the same camp in the same period.”¹²⁰⁵ The Prosecution further submits that Zigic has not shown that the finding that Edin Ganic was a credible witness was unreasonable¹²⁰⁶ or that there are other errors of law or fact in this regard.¹²⁰⁷ The Prosecution notes that if Zigic intended that the beating should end, Goran Lajic would not have continued with the brutal attack on Tokmadzic. The witness who observed the attack had been under no doubts that Zigic was telling Lajic to kill Drago Tokmadzic. Zigic failed to show that no reasonable trier of fact could have reached this conclusion.

546. The Appeals Chamber notes that the findings of the Trial Chamber with regard to the fatal beating of Drago Tokmadzic are based mainly on the evidence given by Edin Ganic. Although the relevant part of the Judgement begins with a quotation of Witness Y’s testimony, Edin Ganic is the only eyewitness to the incident who testified before the Trial Chamber.¹²⁰⁸ The testimony of Witness Y corroborates and complements the testimony of Edin Ganic, as Witness Y was witness to the death of Drago Tokmadzic fifteen minutes after the beating. The argument of Zigic that the Trial Chamber relied on hearsay evidence of a witness who had only seen the reflections of a car’s headlights¹²⁰⁹ is therefore misconceived.

547. Contrary to Zigic’s assertions, there are no major contradictions in the evidence given by Edin Ganic and Witness Y. Witness Y did not mention Edin Ganic’s presence, but he was not an eyewitness to the actual beating of Drago Tokmadzic, so that he could not be aware of Edin Ganic’s presence there. The fact that no other witness mentioned that Edin Ganic was beaten does not weaken the reliability of his evidence. No other witness heard by the Trial Chamber was present at the incident,¹²¹⁰ which took place in a remote area of the camp.¹²¹¹ Zigic argues that, according to Witness Y, Drago Tokmadzic was taken out by soldiers wearing masks and gloves, and that this made it improbable that Zigic participated in the incident.¹²¹² However, Witness Y did not describe the perpetrators of the beating as men wearing masks and gloves . Witness Y mentioned only one person with such an attire; this person entered the room after the event and ordered four detainees to carry Drago Tokmadzic’s body away.¹²¹³ Edin Ganic, on the other hand, mentioned a large number of persons being present during the incident, several of whom he did not know.¹²¹⁴ He was not questioned about their appearance.

548. Zigic argues that the testimony of Edin Ganic was unreliable, because he gave the date of the incident as the 29th or 30th of June, whereas Drago Tokmadzic had already died on the 21st, at a date when Edin Ganic was not yet detained in the camp. However, Zigic fails to demonstrate that this was the exact date of Drago Tokmadzic’s death. He relies on the testimony of Dr Dusanka Andjelkovic, but this witness could in fact not remember the exact date. She concluded, nine years after the events and only on insecure assumptions that the date must have been the 21st. The transcript reads:

     Q. Can you tell us when did it happen?

     A. I believe I can. It was in the latter half of June and it was over the weekend, because on workdays, I was not at home, I worked. So it must have been either Saturday or Sunday. And now when I think back, in view of the duties that I had at the time, I usually did my shopping on Saturday mornings, and Sundays I spent at home preparing food for that day for my workdays, so I think that this call came on Sunday in the morning hours because Mr. Zivko Knezevic found me at home.

     Q. And can you tell us if that was towards the end of the month or in the early part of the second half of the month?

     A. It was in the beginning of the second half of June.

     Q. Did you then go to Keraterm?

     A. I was about to explain why I'm so sure that it was the beginning of the latter half of June rather than the last week because the -- I spent the last week of June in Banja Luka as my daughter was about to deliver. I was to become a grandmother for the first time. So the last weekend in June I spent in Banja Luka, and the weekend before the last one, I was in Prijedor. So it must have been the first weekend in the second half of June.¹²¹⁵

     The use of words such as “it must have been” or “usually” clearly indicates that the witness had no exact recollection of the date, but tried to reconstruct it from her recollection of her usual daily routine. This does not exclude the possibility of deviations from this routine, and renders her memory unsafe on this point, despite her affirmation that she was sure of the date. From the testimony of Witness Y, it can be only inferred that the incident took place a few days after his arrival in Keraterm on the 22nd.¹²¹⁶ The exact date of the death of Drago Tokmadzic remains unknown and this left it open for the Trial Chamber to accept the testimony of Edin Ganic.

549. Zigic advances further argument in order to show that Edin Ganic was unreliable. He submits that the witness stated that he did not know Zigic before he came to Keraterm, whereas his father did;¹²¹⁷ that he claimed to have seen how Drago Tokmadzic was called out, although he was kept in a room some distance away;¹²¹⁸ and that he mentioned an abducted child who was not actually abducted.¹²¹⁹ The Appeals Chamber finds that these alleged inconsistencies do not affect the core of the testimony and did not prevent a reasonable trier of fact from relying on the witness.

550. Zigic finally argues that the evidence was ambiguous and did not allow the conclusion that he participated in the fatal beating of Drago Tokmadzic, as the words “finish that off” could be understood in several ways, for example, to stop the beating.¹²²⁰ However, as the Trial Chamber found that Goran Lajic continued his beating of Drago Tokmadzic after these words, Goran Lajic at least understood the phrase in the sense of continued beating, and Zigic did nothing to stop him. Given the fact that the beating was so severe that Drago Tokmadzic died only a short time afterwards, and that Edin Ganic explicitly stated that he understood the meaning as “kill him”,¹²²¹ the Appeals Chamber finds that the Trial Chamber could have reasonably concluded that Zigic contributed to the fatal beating of Drago Tokmadzic.

     (a) The Trial Chamber ignored the Defence witnesses

551. Zigic argues that the Defence witnesses were completely ignored by the Trial Chamber, and refers to the arguments in his final Trial Brief.¹²²² These arguments were already heard and implicitly rejected by the Trial Chamber. The burden was on Zigic to explain why this decision of the Trial Chamber was erroneous . The mere reference to his Final Trial Brief is not sufficient: this sub-ground of appeal must fail.
     2. The additional evidence: Witness KV1

552. By the decision of 16 February 2004, the Appeals Chamber admitted the testimony of Witness KV1 as additional evidence pursuant to Rule 115 with regard to the fatal beating of Drago Tokmadzic. This witness was heard as a Court witness by the Appeals Chamber on 23 March 2004.

553. Witness KV1 stated that he had been in room 4 when Drago Tokmadzic was called out with some others. After some time, he was thrown back into the room. Drago Tokmadzic was already dead when he was thrown back into the room.¹²²³ He heard the voices of several persons, but no particular words like “finish that off”. Edin Ganic had not been in room 4, Zigic was not present. Witness KV1 could not see who was beating Drago Tokmadzic and the other victims; he knew the names of three persons participating in the beating, but there had been more than these three.¹²²⁴ He heard the sounds of the beating from a distance of perhaps three to four metres.

554. The Appeals Chamber is convinced that the additional evidence presented by Witness KV1 does not have any impact on the Trial Chamber’s findings. Witness KV1 heard only voices and sounds and did not see the actual beating. His testimony that Zigic was not present is of little probative value. It is not even clear if the beating which the witness heard was actually the beating of Drago Tokmadzic; according to Edin Ganic, this beating took place in a remoter location. The testimony of Witness KV1 does not exclude the possibility that Drago Tokmadzic was beaten at this second, remoter location. The additional evidence, assessed in the light of the evidence on the trial record, does not raise any doubt undermining the Trial Chamber’s findings.
     3. Zigic’s contribution to the fatal beating of Tokmadzic does not establish his responsibility as co-perpetrator in Tokmadzic’s murder

555. Although he does not identify this as a separate ground of appeal, Zigic alleges that the Trial Chamber committed an error of law when it concluded that his participation in the fatal beating of Drago Tokmadzic made him responsible as co-perpetrator in Tokmadzic’s murder.¹²²⁵ He argues that his contribution to the incident does not per se establish co-perpetration, as there may be contributions that do not incur criminal liability or incur criminal liability of a different kind, such as incitement or aiding and abetting.

556. The Trial Chamber found that “Zigic contributed to the fatal beating of Drago Tokmadzic” and explicitly qualified his liability as co-perpetration.¹²²⁶ It is well established in the jurisprudence of the Tribunal that Article 7(1) does not only cover the physical perpetration of the crime by the offender himself, but also encompasses participation in a common purpose or design.¹²²⁷ The Trial Chamber also considered the differences between co-perpetration and aiding and abetting: in an earlier part of the Judgement it stated that “a co-perpetrator shares the intent to carry out the joint criminal enterprise and performs an act or omission in furtherance of the enterprise. An aider or abettor need not necessarily share the intent of the co-perpetrators.”¹²²⁸ This definition is in accordance with the jurisprudence of this Tribunal.¹²²⁹

557. Applying these principles to the killing of Drago Tokmadzic, the Trial Chamber found that Goran Lajic, who physically beat Drago Tokmadzic, and Zigic, who instructed him to do so, shared the intent to maltreat the victim with the knowledge that this beating might cause his death. Considering that Zigic, when he gave his instruction to Lajic, was present at the scene of the crime and himself continued to maltreat another prisoner (Edin Ganic), it was correct to qualify Zigic’s participation in the crime as actively furthering it. The Trial Chamber’s findings support the conviction of Zigic as co-perpetrator. This argument fails.
     4. The Trial Chamber was not impartial when totally ignoring the defence evidence as well as the prosecution evidence in favour of acquittal (ground of appeal 16)

558. Zigic claims that the defence evidence, plus part of the prosecution evidence, was “totally ignored in this case,” and that this body of evidence came from nine witnesses. The witnesses testified about who killed Tokmadzic, and their evidence should have been given some attention.¹²³⁰

559. Zigic has failed to establish why the Trial Chamber should have considered the evidence it allegedly ignored. He does not explain why this evidence was relevant to the Trial Chamber’s findings and does not advance any independent basis for the alleged bias of the Trial Chamber. The Appeals Chamber finds this ground of appeal without merit.
     5. The conditions were not indicated for Articles 3 and 5 of the Statute to apply to the murder (ground of appeal 17)

560. Zigic claims that the Trial Chamber failed to show how Articles 3 and 5 of the Statute were to be applied. He argues that Drago Tokmadzic, who was a half-Serb police officer and had declared loyalty to the Serbian authorities, could not possibly be treated as a prisoner of war in the Omarska camp. He submits that the Defence witnesses’ testimony indicates that Drago Tokmadzic was murdered because he was a “sharp” policeman. Zigic claims that he had no motive to kill Tokmadzic and that the Trial Chamber failed to establish that he had any motive to do so.¹²³¹ The Prosecution submits that the ethnicity of the victim is irrelevant to the charge based on a violation of the laws or customs of war once the Trial Chamber has found the necessary nexus between the armed conflict, the camps and mistreatment.¹²³²

561. The Trial Chamber found Zigic guilty of persecution (count 1) as a crime against humanity and murder as a violation of the laws or customs of war (count 7) with respect to the fatal beating of Drago Tokmadzic.¹²³³ The ethnic background of Drago Tokmadzic is in fact irrelevant to Zigic’s conviction of murder as a violation of the laws or customs of war. As he was detained in the camp, he belonged to the group of persons protected by the Common Article 3 of the Geneva Conventions. With regard to the conviction of persecution, the Appeals Chamber refers to the earlier discussion of this issue.¹²³⁴
     F. Zigic’s participation in the torture of Abdulah Brkic (ground of appeal 20)

562. The Trial Chamber found that Abdulah Brkic was beaten in the Omarska camp in the “white house” by Dusan Knezevic. After the beating, Zigic took Abdulah Brkic to another room and asked him to write down the name of the SDA President in Puharska . In this room Emir Beganovic was beaten.¹²³⁵ The Trial Chamber found Zigic guilty of persecution (count 1 of the Indictment) and torture (count 12) with respect to the beating of Abdulah Brkic.¹²³⁶

563. Zigic contests the Trial Chamber’s finding that he aided and abetted the beating of Abdulah Brkic on the basis that there was no reliable evidence proving that he participated in the beating and because his intent was to help Brkic by taking him to another room.¹²³⁷ Thus, he submits that the Trial Chamber erred on factual and legal issues in finding that he aided and abetted the beating of Abdulah Brkic.¹²³⁸ The Prosecution responds that the evidence did not support Zigic’s contention that he stopped the beating, as the victim was merely moved from one place of torture to another.¹²³⁹ The Prosecution notes that after taking the victim to the second room, Zigic left the victim there, where soldiers were beating another prisoner.¹²⁴⁰ In addition, the Prosecution also submits that Zigic misunderstands the legal basis of the conviction. The legal basis is aiding and abetting¹²⁴¹ and not direct participation. The Prosecution submits that Zigic has failed to demonstrate any error of law or fact in the Trial Judgement.¹²⁴²

564. The Appeals Chamber notes that Zigic was not convicted for physically beating Abdulah Brkic, but for aiding and abetting his beating. The testimony of Abdulah Brkic that Zigic never touched him is therefore irrelevant to the Trial Chamber’s finding. Some time after Zigic had brought Abdulah Brkic to the second room, Abdulah Brkic was asked if he had written down the name as Zigic had ordered him to do. When Abdulah Brkic answered that he did not know the name, the soldier who had been beating Emir Beganovic turned round, called Abdulah Brkic a liar, grabbed his ear and held a knife to it as if he wanted to cut it off. He was prevented from doing so by another soldier.¹²⁴³ The Appeals Chamber finds that the whole incident – from the beating to the threatening with a knife – can be qualified as torture, cruel treatment and an inhumane act. Zigic has neither demonstrated any legal error committed by the Trial Chamber, nor has he shown that no reasonable trier of fact could arrive at the conclusion that he had at least the intention to facilitate the maltreatment of Abdulah Brkic. His conviction for aiding and abetting torture is accordingly upheld.
     G. Zigic’s conviction for the torture of Witnesses AK, AJ, Asef Kapetanovic and Emir Beganovic (grounds of appeal 24, 25, 26 and 27)

565. The Trial Chamber found that on 10 June 1992, Zigic called out several detainees including Witnesses AK, AJ and Asef Kapetanovic. These detainees were severely beaten by Zigic and some guards. At the same time, Emir Beganovic was maltreated in another room of the “white house”, albeit not by Zigic. At some stage Witnesses AK, AJ, Asef Kapetanovic and Emir Beganovic were taken outside where Zigic made them drink and wash themselves with the water from a puddle on the “pista”.¹²⁴⁴ This incident led the Trial Chamber to find Zigic guilty of persecution (count 1 of the Indictment) against Witnesses AK, AJ and Asef Kapetanovic and torture (count 12) against Witnesses AK, AJ and Asef Kapetanovic.¹²⁴⁵ With regard to Emir Beganovic, the Trial Chamber found Zigic guilty of persecution (count 1) and cruel treatment (count 13).¹²⁴⁶

566. Zigic admits to have committed the “main part of the crime”, namely, the beating of Witness AK.¹²⁴⁷ However, he argues that Witness AK exaggerated his participation, and that he had no intent to discriminate against him as a Muslim. He submits he is only guilty of cruel treatment with regard to this victim.¹²⁴⁸ With regard to Witness AJ, Asef Kapetanovic and Emir Beganovic he submits that there was no reliable evidence to establish his participation.

567. The Appeals Chamber finds that there was sufficient evidence for the Trial Chamber to support its findings. Zigic’s arguments seek merely to substitute his own evaluation of the evidence for that of the Trial Chamber, without demonstrating that it was not open for a reasonable trier of fact to come to the conclusions of the Trial Chamber. The Appeals Chamber therefore dismisses these grounds of appeal without detailed consideration of their merits.
     H. Zigic’s conviction for the torture of Fajzo Mujkanovic (ground of appeal 28)

568. The Trial Chamber convicted Zigic for participation in the torture of Fajzo Mujkanovic, who was beaten and threatened by a group of four persons, including Zigic and Dusan Knezevic. Zigic challenges this conviction; the Appeals Chamber understands that Zigic submits that the Trial Chamber committed a factual and a legal error in this regard.
     1. The legal error

569. The alleged legal error is based on two sub-grounds: (i) on the basis of the factual findings of the Trial Chamber, Zigic was not a co-perpetrator, but “at the worst” guilty of aiding and abetting;¹²⁴⁹ (ii) Fajzo Mujkanovic was not maltreated because of his ethnicity as the motive for the maltreatment was extortion of information. Zigic argues that the Trial Judgement notes that the only witness of the event was Abdulah Brkic who testified that Duca Knezevic beat Mujkanovic and cut his neck.¹²⁵⁰ He asserts that the Trial Chamber itself noted that even presence at the crime scene alone is not conclusive of aiding or abetting, unless there is a significant, legitimizing, or encouraging effect on the principal.¹²⁵¹ Regarding the second sub-ground, he submits that the beating was not carried out on the basis of ethnicity because the torture was intended to extract specific information.¹²⁵²

570. The relevant paragraph of the Trial Judgement reads as follows:

     [A]round 1 June 1992, the door of the room suddenly opened and a black car stormed in at great speed. Zigic and other men, including Dusan Knezevic, got out of the car and demanded that the detainees tell them where Fajzo Mujkanovic was hiding or be killed. Then suddenly somebody shouted out that Fajzo Mujkanovic was in room 1, so Zigic and his men left. Dusan Knezevic demanded to know from Fajzo Mujkanovic who had killed his brother. He then beat Fajzo Mujkanovic and made an incision across his neck with a knife. Fajzo Mujkanovic’s wife and child were then brought in and Dusan Knezevic threatened he would kill them if Fajzo Mujkanovic refused to answer. Zigic, Dusan Knezevic and the other men left, however, when one of the guards said, “They’re coming.”¹²⁵³

     From this finding it is evident that Fajzo Mujkanovic was tortured by a group of four persons, the object being to elicit information. Brkic did not differentiate between the four perpetrators. The incident, especially the fact that Mujkanovic’s wife and child were brought into the room, required the participation of more than one person. A reasonable trier of fact could conclude that the torture was committed by this group as co-perpetrators, even if the actual physical abuse was committed only by one of the members of the group.

571. Regarding the second sub-ground, even if the information sought was about a family member of one of the perpetrators, the object was still to elicit information. The Appeals Chamber notes that in many cases of torture the objective of the perpetrators is to extract some information, which does not prevent its qualification as an act of persecution, provided that the elements of the latter crime are also met. These sub-grounds of appeal fail.
     2. The factual error

572. Zigic submits that the evidence does not place him at the scene of the beating of Mujkanovic. Zigic recalls that Witnesses AN and DD/5 did not mention that Zigic participated in the beating of Mujkanovic in any capacity.¹²⁵⁴ Witness DD/5 also testified that there was some “unsettled business” between Duca Knezevic and Fajzo Mujkanovic before the war, which was the reason that Knezevic beat and killed Mujkanovic.¹²⁵⁵ While testifying about this incident, Witness DD/9, a former guard at Keraterm, said that he did not see Zigic beating the victim.¹²⁵⁶

573. The Appeals Chamber notes that all three witnesses whose evidence Zigic quotes gave only a very cursory account of the incident involving Fajzo Mujkanovic and that it is unclear whether Witness DD/9 actually saw the incident.¹²⁵⁷ The Appeals Chamber finds that Zigic has failed to demonstrate that no reasonable trier of fact could have come to the Trial Chamber’s conclusion. Ground of appeal 28 is therefore dismissed.
     I. Zigic’s conviction for the torture of Witness AE and Grabic (ground of appeal 30)

574. The Trial Chamber found that near the end of June 1992, Zigic called out a group of men, including Witness AE and Redo (RedZep) Grabic. He ordered them to kneel down and then beat them with a metal rod. Subsequently, Zigic ordered them “to fight amongst themselves, threatening that if they refused to do so, he would assault them. Witness AE was ordered to fight Redo Grabic.”¹²⁵⁸ The Trial Chamber found Zigic guilty of torture and cruel treatment with regard to Witness AE and RedZep Grabic.¹²⁵⁹

575. Zigic claims that there was only one witness to this incident, and that this witness was not able to recognise him in the courtroom. He argues that the conviction for this serious crime, which was based upon the testimony of one witness, was erroneous and “unheard of in the practice of the civilised states of the World”.¹²⁶⁰ According to Zigic, the description of his uniform by the witness was also wrong, and he challenges the credibility of this witness.¹²⁶¹ The Prosecution relies on paragraph 33 of the Kupreskic et al. Appeal Judgement in arguing that corroboration of a testimony of a sole witness is not required.¹²⁶² The Prosecution also dismisses the argument about the colour of Zigic’s uniform on the basis that the Trial Chamber neither made any finding nor commented on that detail.¹²⁶³

576. Zigic has already raised these objections in his Final Trial Brief, and they were considered by the Trial Chamber.¹²⁶⁴ The Appeals Chamber recalls that the jurisprudence of the Tribunal does not require the corroboration of the testimony of a sole witness, and that the failure of courtroom identification does not necessarily destroy any case which might have been otherwise established in evidence.¹²⁶⁵ Witness AE had correctly described Zigic as a taxi-driver from Prijedor, whom he had known for several years.¹²⁶⁶ It was open for a reasonable Trial Chamber to attach more importance to the recognition of Zigic in the context of the event than to the uncertainty of the witness several years afterwards. This ground of appeal fails.
     J. Zigic’s conviction for the torture of Jasmin Ramadanovic also known as “Sengin” (grounds of appeal 31 and 32)

577. The Trial Chamber found that Zigic had accused Jasmin Ramadanovic nicknamed “Sengin” of being a “green beret” and subsequently beaten him,¹²⁶⁷ and found Zigic guilty of torture and cruel treatment.¹²⁶⁸

578. Zigic argues that the testimony of the only eyewitness, Witness N, indicates he was not responsible for the serious injuries of Ramadanovic. Zigic calls attention to Witness N’s testimony that the beating causing the serious injuries leading to hospitalization occurred “later on” and did not indicate that Zigic took part in that beating.¹²⁶⁹ Zigic contests the Trial Chamber’s conclusion that the evidence given by Witness DD/5, DD/7 and DD/9 did not preclude Zigic’s conviction for the torture of Jasmin Ramadanovic.¹²⁷⁰ The Prosecution responds that the evidence was capable of establishing the participation of Zigic in the beating of Ramadanovic, regardless of whether his blows resulted in the victim being hospitalised afterwards.¹²⁷¹ Further, the Prosecution argues that the Trial Chamber had evidence of Zigic’s severe beating of Ramadanovic upon his arrival, which supports Counts 11 and 13.¹²⁷²

579. The relevant part of Witness N’s testimony reads as follows:

     Q. Did you see him being beaten while he was in the camp?

     A. Yes. He was called out by Zoran Zigic, and he told him, "Are you now going to wear a green beret for a hundred German marks?" Immediately after that, he hit him in his head. He was later on taken behind a corner of the building where he was beaten, badly beaten up, and he was then brought back with numerous wounds. His whole head was covered in blood.

     Q. Did you know that he was taken out of the camp thereafter?

     A. Yes. He was given medical help and taken to hospital.¹²⁷³

     The Appeals Chamber finds that it was open for a reasonable trier of fact to come to the conclusion that this testimony referred to one particular incident, beginning with Zigic calling out Jasmin Ramadanovic, hitting him on the head, taking him to another place and beating him severely, so that in the end he suffered diverse head injuries. Nothing in this testimony or in the later evidence given by Witness N suggests that he was describing several incidents.¹²⁷⁴ It was therefore reasonable to find that Witness N had observed one beating of Jasmin Ramadanovic in which Zigic participated, and which resulted in the hospitalization of Jasmin Ramadanovic.

580. The objections of Zigic against the reliability of Witness N have been already considered by the Trial Chamber.¹²⁷⁵ In his Appeal Brief, Zigic repeats and elaborates his objections. In the view of the Appeals Chamber, he merely tries to substitute his own evaluation of the evidence for that of the Trial Chamber. These grounds of appeal must fail.
     K. Zigic’s conviction for beating Hasan Karabasic (grounds of appeal 33 and 34)

581. The Trial Chamber found Zigic guilty of beating Hasan Karabasic in the Trnopolje camp on 5 or 6 August 1992, constituting cruel treatment. It acquitted him of the same crime as torture.¹²⁷⁶ In its finding, the Trial Chamber relied on the testimony of Witnesses AD, N and V.
     1. Ground of appeal 34: in assessing the evidence relating to this incident, the Trial Chamber was unfair in its approach

582. Zigic argues that the Trial Chamber erred in relying on the evidence of a witness it did not trust, and in ignoring the exculpatory evidence of others. He also claims that the Trial Chamber selected parts of his Final Trial Brief and turned the arguments therein against him. He submits that the Judgement was given without the input of the Defence and outlines the evidence supporting acquittal.¹²⁷⁷ The Prosecution responds that consistent and corroborative evidence that the Appellant attacked the victim at Trnopolje was provided by several witnesses,¹²⁷⁸ whom the Defence did not cross-examine at the trial.¹²⁷⁹ In the Prosecution’s view, the Trial Chamber made the only finding of fact reasonably available to it and the Appellant has not demonstrated any error of fact or law.¹²⁸⁰

583. To determine the merit of this ground of appeal, the Appeals Chamber deems it necessary to recall the relevant evidence:

     - Witness AD recounted the incident as follows:

     Zigic found Hasan, threw him to the ground on the grass left of the toilet. He beat him, started to choke and strangle him, and he might have strangled him had he not been stopped by the other guards. I witnessed this at Trnopolje.¹²⁸¹

     - Witness N:

     He was looking for kum Hasan Karabasic. When he found him, he started kicking him as if he were a ball. Then he caught him by the neck, and two Serb guards came up and dragged Zoran away, and Hasan got lost among the other people.¹²⁸²

     - Witness V:

     [Zigic] came near to Hasan Karabasic and he told him, "It seems you're still alive, pal," and he grabbed him by his neck and started to strangle him.

     Q. Did Hasan Karabasic say anything to him?

     A. He started to moan and to shout, "Please, don't do it, pal." Then two Serb soldiers came by and they took Zigic away from there, and Hasan Karabasic remained lying down.¹²⁸³

     - Safet Taci:

     We were standing in front of what used to be the cinema hall in Trnopolje. I was standing there with a group of friends and we heard groans and blows, that kind of thing. When I turned around, when we turned around, I saw that Zigic was hitting and throttling a man who was his kum, his best man. We understood this man to be his kum because he said, "Don't do that to me, kum," or godfather or best man, " What are you doing?"¹²⁸⁴

     Regarding Safet Taci, Zigic submits that the witness described the meeting of Zigic and Hasan Karabasic in the Keraterm camp as a “nice one”.¹²⁸⁵ However, Zigic omits to mention the same witness’s characterization of the incident in Trnopolje:

     Q. Mr. Taci, on cross-examination, Mr. Tosic asked you whether you had seen encounters between Zoran Zigic and his kum at the Keraterm camp and you described their encounter as a very nice one. What was the encounter like that you observed in Trnopolje between Mr. Zigic and his kum? How would you describe that encounter?

     A. Terrible.¹²⁸⁶

     All these witnesses agree that Zigic violently attacked Hasan Karabasic and attempted to strangle him. The attack took place on an outside area in the Trnopolje Camp where Hasan Karabasic was detained at this time. The Appeals Chamber cannot find any error in the Trial Chamber’s disregard of Witness DD/9’s rather confused account of the same incident, but notes that even this witness mentioned Zigic’s attack on the victim’s throat. This ground of appeal is dismissed.

     2. Ground of appeal 33: the acts against the victim qualified as cruel treatment did not meet the conditions of Articles 3 and 5 of the Statute

584. Zigic submits that the incident involving Hasan Karabasic was provoked by family matters between Zigic and the victim (the former’s best man or god-father) and did not cause the level of harm necessary for a finding of cruel treatment. Zigic argues that as the altercation was of a personal nature and Karabasic was not a prisoner of war, it did not fall within the competence of the Tribunal as a serious violation of international law. While citing the Trial Chamber’s holding that “the degree of physical or mental suffering required to prove cruel treatment … must be at the same level as wilfully causing great suffering or serious injury to body or health,” Zigic argues that the incident did not cause serious injury to Karabasic’s body or health. ¹²⁸⁷

585. Considering the Trial Chamber’s findings and the evidence recalled above, the Appeals Chamber finds this ground of appeal to be without merit.
     L. Zigic’s conviction for beating Edin Ganic (ground of appeal 37)

586. The Trial Chamber found that Zigic and several others severely beat Edin Ganic in order to extort money and a motorbike from him. Zigic was convicted of persecution arising from the cruel treatment of Edin Ganic.¹²⁸⁸

587. Zigic claims that Edin Ganic’s evidence was inconsistent with that of Witness Y on which the Trial Chamber relied primarily in establishing the event in question, ¹²⁸⁹ and that Edin Ganic was not a reliable witness and should be charged with giving false testimony in describing an event as an eye-witness when he was not actually present during the event.¹²⁹⁰ The Prosecution responds that the issue was considered by the Trial Chamber,¹²⁹¹ and that the attacks on the reliability of the two witnesses were peripheral.¹²⁹² In reply, Zigic points out that it was clear that witness Husein Ganic falsely denied that he had signed a statement given to the Bosnian War Crimes Commission.¹²⁹³ He claims that, contrary to the witnesses’ account, only two women were ever detained for long periods in the “white house” and neither of them had any limbs in plaster.¹²⁹⁴

588. The Appeals Chamber notes that Zigic relies partially on the same arguments he submitted in support of his ground of appeal 24.¹²⁹⁵ The only argument the Appeals Chamber has not considered is his challenge to the reliability of Husein Ganic’s testimony.

589. There is a discrepancy between the testimony of Edin Ganic and the testimony of his father Husein Ganic about the exact location in which they were maltreated. Edin Ganic stated that he was called out of the room where he was detained and brought to the other end of the camp, where he met several persons, some of them soldiers or guards, some of them victims. Zigic and others started to beat him there. Edin Ganic temporarily lost consciousness and was later taken to the room where his father was detained and there threatened with a knife.¹²⁹⁶ According to Husein Ganic, he was taken out and beaten.¹²⁹⁷ After some time, Zigic ordered Edin Ganic to be fetched. Husein Ganic was forced to watch how his son Edin Ganic was beaten; afterwards he was thrown in a water barrel and later taken back to his room where he remained in a state of semi-consciousness until the next morning.¹²⁹⁸

590. At trial, Zigic challenged the credibility and reliability of the two witnesses’ testimony. The Trial Chamber was aware of the inconsistencies between the testimonies, but still found both witnesses credible and reliable.¹²⁹⁹ The Appeals Chamber has to determine whether it was unreasonable for the Trial Chamber to do so.

591. The Appeals Chamber acknowledges the discrepancies between the two accounts. On the other hand, there are several distinctive traits which appear in both witnesses’ testimony. Both witnesses remembered the remark made by Zigic to Edin Ganic when his leg was broken, that he would never be able again to drive a motorcycle, the motorcycle being one of Zigic’s main concerns.¹³⁰⁰ Another utterance both witnesses remembered clearly was Zigic’s repeated demand for “a pot of gold”.¹³⁰¹ Both witnesses stated that Zigic threatened to kill Edin Ganic if his demands were not fulfilled.¹³⁰² Both of them stated Husein Ganic was thrown near the end of the incident into a barrel of water.¹³⁰³ These distinctive characteristics of the incident strongly suggest that both witnesses recounted their recollections of a real incident. The Appeals Chamber further observes that Husein Ganic stated how, due to suffering heavy blows, he fell into a state of semi-consciousness after the incident.¹³⁰⁴ This is corroborated by Edin Ganic’s remark that his father could hardly speak. It is more than likely that Husein Ganic’s memory was partially affected by his maltreatment. This, together with his age and the time which has elapsed since the events, would account for the partial confusion of his account. It was therefore not unreasonable for the Trial Chamber to accept the substance of the evidence notwithstanding the differences between the two accounts.

592. The remaining inconsistencies in Husein Ganic’s testimony do not affect the central issues of his testimony, that is to say, the beating of Edin Ganic. It is irrelevant whether Husein Ganic remembered a written statement he allegedly gave to the Bosnian State Commission.¹³⁰⁵ The same applies to his mention of a few female detainees in the “white house” about whose fate he had only vague information.¹³⁰⁶ The Appeals Chamber observes that Zigic acknowledges the temporary presence of at least two female detainees in the “white house”¹³⁰⁷ and that there is no other evidence on the trial record which excludes the possibility that other women could have been detained in this location.¹³⁰⁸

593. The Appeals Chamber finds that the existing contradictions between the testimony of Edin Ganic and the testimony of Husein Ganic can be easily explained by the mental and physical state of Husein Ganic, and that it was open to a reasonable Trial Chamber to rely on the evidence given by Edin Ganic, using the evidence of Husein Ganic as corroboration. This ground of appeal is therefore dismissed.
     M. Zigic’s conviction for crimes in the Omarska camp in general(grounds of appeal 1-3, 18, 19, 42 and 45)

594. Apart from the conviction for particular crimes, the Trial Chamber found Zigic responsible “for the crimes committed in the Omarska camp generally” with respect to persecution (count 1 of the Indictment), murder (count 7) and torture (count 12).¹³⁰⁹ Zigic challenges this conviction and advances various grounds in support of this challenge. He argues that the factual findings of the Trial Chamber do not support his conviction for all the crimes in the Omarska camp,¹³¹⁰ and that the Trial Chamber erred in finding that his contribution to the functioning of the camp was significant.¹³¹¹ In addition, he claims that he was not properly charged for these crimes,¹³¹² that he was not put on adequate notice that he was accused of participating in a joint criminal enterprise,¹³¹³ and that his Defence was seriously compromised by this charging failure.¹³¹⁴

595. The Trial Chamber found that Zigic committed the following crimes in the Omarska camp physically and directly:

     (i) on 10 June 1992, he participated in the beating of Witnesses AK, AJ, and Asef Kapetanovic, and aided and abetted the beating of Abdulah Brkic. In addition, he intentionally humiliated Emir Beganovic on the same occasion;¹³¹⁵

     (ii) on two days around 10 June 1992, Zigic participated in the beating of Becir Medunjanin and Witness T; Becir Medunjanin died as a result of these beatings.¹³¹⁶

     In addition, the Trial Chamber found that Zigic “regularly entered Omarska camp for the specific purpose of abusing detainees.”¹³¹⁷ Unlike its findings with regard to the other Accused, the Trial Chamber did not limit Zigic’s responsibility to a certain period of time, nor did it make any findings about the duration of Zigic’s participation in the joint criminal enterprise.

596. The Trial Chamber based its finding on Zigic’s participation in the Omarska camp, apart from its findings on particular crimes, on the evidence of Azedin Oklopcic and Ervin Ramic.¹³¹⁸ Ervin Ramic stated that Zigic had mentioned once in Keraterm that he was on the way to Omarska, to kill the prominent Muslims there.¹³¹⁹ Azedin Oklopcic gave his opinion about Zigic’s role in Omarska as follows:

     Let me tell you one thing, all the guards in the camp, in the Omarska camp, it was an attraction for them all when Zigic, Timarac, and Duca turned up, because they knew that at that time when they turned up, they would see something that they couldn't even see on film. And when it happened that Zigic beat Rezak or Began or anybody else, all the other guards from the surrounding points would come up to watch, to experience those incidents.¹³²⁰

     In addition, he stated that Zigic entered Omarska camp once or twice a week, and that he had seen him in the camp at least ten times.

597. Ervin Ramic could provide evidence about only one of Zigic’s visits to the Omarska camp. Azedin Oklopcic was detained in Omarska from 30 May¹³²¹ until 5 August,¹³²² so that his testimony does not cover all of the time the Omarska camp existed.¹³²³ Although Azedin Oklopcic considered Zigic one of the worst perpetrators in the Omarska camp, he recounted only one particular incident involving Zigic, when Zigic participated in the beating of Asef Kapetanovic and others.¹³²⁴ The Appeals Chamber acknowledges that Azedin Oklopcic’s testimony suggests that Zigic’s contribution to the overall effect of the Omarska camp was significant. However, in the absence of concrete facts supporting this evidence, it remains the personal opinion of the witness and is, as such, not a sufficient base to establish Zigic’s responsibility as a participant in a joint criminal enterprise.

598. Zigic held no official position in the Omarska camp; he was not even a guard. His participation in the functioning of the camp, as it was established by the Trial Chamber, amounted to several – at most ten – visits to the camp. The evidence before the Trial Chamber allowed the conclusion that on two occasions Zigic participated in the maltreatment of detainees.

599. The Appeals Chamber is of the opinion that a person need not have any official function in the camp or belong to the camp personnel to be held responsible as a participant in the joint criminal enterprise. It might be argued that the possibility of “opportunistic visitors”¹³²⁵ entering the camp and maltreating the detainees at random added to the atmosphere of oppression and fear pervading the camp. In the view of the Appeals Chamber, it would not be appropriate to hold every visitor to the camp who committed a crime there responsible as a participant in the joint criminal enterprise. The Appeals Chamber maintains the general rule that a substantial contribution to the joint criminal enterprise is not required,¹³²⁶ but finds that, in the present case of “opportunistic visitors”, a substantial contribution to the overall effect of the camp is necessary to establish responsibility under the joint criminal enterprise doctrine. The Appeals Chamber does not wish to minimize the gravity of the crimes Zigic committed in the camp; they are serious violations of international humanitarian law. On the other hand, the Trial Chamber found that a “regular stream of murders, tortures, and other forms of physical and mental violence ” pervaded the camp,¹³²⁷ and that “[e]xtreme brutality was systematic in the camps”.¹³²⁸ The violence was not confined to a small group of perpetrators; on the contrary,

     [c]amp personnel and participants in the camp’s operation rarely attempted to alleviate the suffering of detainees. Indeed, most often those who participated in and contributed to the camp’s operation made extensive efforts to ensure that the detainees were tormented relentlessly.¹³²⁹

     The incidents in which Zigic participated, despite their quality of grave crimes, formed only mosaic stones in the general picture of violence and oppression. The Appeals Chamber finds that, in the absence of further evidence of concrete crimes committed by Zigic, no reasonable trier of fact could conclude from the evidence before the Trial Chamber that Zigic participated in a significant way in the functioning of Omarska camp. He cannot be held responsible as a participant in this joint criminal enterprise; his conviction for the crimes committed in this camp “in general” has to be overturned.

600. In view of the preceding analysis, the Appeals Chamber does not consider that the remaining grounds of appeal regarding Zigic’s conviction for the crimes in Omarska in general impact upon the outcome of the appeal. Accordingly, the Appeals Chamber declines to give them further consideration.
     VI. SEPARATE GOUNDS OF APPEAL OF PRCAC

601. The Appeals Chamber understands that Prcac raises in his Appeal Brief six distinct grounds of appeal, one of them relating to his sentence.¹³³⁰
     A. The factual findings of the Trial Chamber

602. Prcac did not challenge the approach chosen by the Trial Chamber as to its factual findings. However, the Appeals Chamber deems it necessary to identify at the outset the factual findings underlying Prcac’s conviction, consistent with its approach regarding the other Appellants.

603. Prcac was found guilty of persecution, murder and torture only in respect of selected incidents listed in Schedule E. A review of the factual findings made by the Trial Chamber throughout the Trial Judgement shows that Prcac has been found guilty, pursuant to Article 7(1) of the Statute, of persecution under count 1 of the Indictment in respect of the following victims contained in Schedule E: Witness A,¹³³¹ Witness B,¹³³² Abdulah Brkic,¹³³³ Zlatan Besirevic,¹³³⁴ Muhamed Cehajic,¹³³⁵ Witness F,¹³³⁶ Riza Hadzalic,¹³³⁷ Jasmin Hrnic,¹³³⁸ Zuhra Hrnic,¹³³⁹ Hase Icic,¹³⁴⁰ Witness AK,¹³⁴¹ Witness K,¹³⁴² Asef Kapetanovic,¹³⁴³ Gordan Kardum,¹³⁴⁴ Omer Mesan,¹³⁴⁵ Zijad Mahmuljin¹³⁴⁶ Sabit Murcehajic,¹³⁴⁷ Azedin Oklopcic,¹³⁴⁸ Witness AI,¹³⁴⁹ Nusret Sivac,¹³⁵⁰ Sifeta Susic,¹³⁵¹ Witness AJ,¹³⁵² Witness Y,¹³⁵³ Witness AM¹³⁵⁴ and Witness T¹³⁵⁵ were confined in inhumane conditions. The detainees Witness AJ,¹³⁵⁶ Muhamed Cehajic,¹³⁵⁷ Gordan Kardum,¹³⁵⁸ Riza Hadzalic,¹³⁵⁹ Jasmin Hrnic,¹³⁶⁰ Hase Icic,¹³⁶¹ Asef Kapetanovic,¹³⁶² Emir Beganovic,¹³⁶³ Azedin Oklopcic,¹³⁶⁴ Witness T,¹³⁶⁵ and Witness Y¹³⁶⁶ were victims of beatings. Witness F,¹³⁶⁷ and Witness K¹³⁶⁸ were victims of sexual assault. Riza Hadzalic¹³⁶⁹ was detained in the camp and killed.

604. A review of the factual findings made by the Trial Chamber throughout the Trial Judgement shows that Prcac was found guilty, pursuant to Article 7(1) of the Statute, of murder under count 5 of the Indictment in respect of only one victim contained in Schedule E: Rizah Hadzalic.¹³⁷⁰

605. As to count 9 of the Indictment, a review of the factual findings made by the Trial Chamber throughout the Trial Judgement shows that Prcac has been found guilty, pursuant to Article 7(1) of the Statute, of torture under count 9 in respect of the following victims contained in Schedule E: Rizah Hadzalic,¹³⁷¹ Hase Icic,¹³⁷² Emir Beganovic,¹³⁷³ Muhamed Cehajic,¹³⁷⁴ Asef Kapetanovic ¹³⁷⁵ and Witness T.¹³⁷⁶

606. No factual findings could be found in the Trial Judgement for the following victims contained in any of the Counts of Schedule E: Refik Begulic, Witness AV, Zlata Bilajac, Witness X, Husein Crnkic, Durat Dautovic, Midhet Fazlic, Suljo Ganic, Mehmed Hadzic, Husein Hodzic, Ivan Hrvat, Sakib Jakupovic, Mario Josic, Witness AU, Witness AF, Witness M, Eso Mehmedagic, Ferid Mujcic, Witness AL, Muharem Nezirevic, Emir Ramic, Mevludin Sejmenovic, Sefik Sivac and Reuf Travancic.
     B. The Trial Chamber accepted all arguments of Prcac (ground of appeal 1)

607. Under this ground of appeal, Prcac submits that the Trial Chamber effectively accepted all of his arguments, thus establishing that none of the allegations made in the Indictment or those contained in the Prosecution’s opening statement were true. Prcac contends that, as a result, the Trial Chamber should have acquitted him of all charges.¹³⁷⁷ The Prosecution responds that Prcac is not correct in claiming that the Trial Chamber accepted all his arguments nor in claiming that the Trial Chamber found none of its allegations to be true.¹³⁷⁸ It argues that the inconsistencies between the facts alleged in the Indictment and the facts found by the Trial Chamber do not go to the essence of the crimes charged. As such, it contends that the inconsistencies neither invalidate the Indictment nor require the Indictment to be amended before a conviction may be entered.¹³⁷⁹ According to the Prosecution, the same is also true of inconsistencies between facts alleged in its opening statement and those found by the Trial Chamber.¹³⁸⁰

608. Prior to addressing this submission, the Appeals Chamber deems it necessary to make a preliminary observation. Pursuant to Article 25 of the Statute of the International Tribunal, the Appeals Chamber hears appeals only concerning errors of fact or law. It falls to the appellant to specifically identify such errors in the Trial Judgement, if any, for the Appeals Chamber to consider.¹³⁸¹ In the instant case, instead of identifying specific errors on the part of the Trial Chamber, Prcac chooses to advance the general argument that his contentions were adopted wholesale by the Trial Chamber at trial. Such an approach does not assist the Appeals Chamber in properly carrying out its function. The Appeals Chamber will thus review the following two specific points raised by Prcac in support of this ground of appeal.
     1. Decision on Defence Motions for Acquittal

609. The submissions of Prcac, as set out above, are partly based on his interpretation of the Decision on the Defence Motions for Acquittal. Prcac submits that the Trial Chamber (i) ruled that he did not act in accordance with the common purpose of persecution of non-Serbs in the territory of the municipality of Prijedor, but founded his possible guilt only on the events in the Omarska camp; (ii) decided to acquit Prcac of responsibility in relation to events that took place in the camp before his arrival and after his departure; and (iii) limited Prcac’s possible guilt not only to the Omarska camp but to the precise period in which he was there.¹³⁸² In response, the Prosecution argues that Prcac’s interpretation of the Decision on the Defence Motions for Acquittal is incorrect.¹³⁸³ It argues that the Trial Chamber did not limit Prcac’s responsibility to the period in which he was present in the camp as the decision did not address his liability for crimes committed after his departure. Further, the Prosecution asserts that there is no indication to suggest that the Trial Chamber decided that the trial was to proceed only in relation to crimes personally committed by Prcac.¹³⁸⁴ The Prosecution emphasizes that nothing in the decision indicates that there was no case to answer in relation to the crimes based on a theory of joint criminal enterprise.¹³⁸⁵

610. As far as Prcac’s first submission is concerned, the Appeals Chamber notes that while the Trial Chamber limited Prcac’s possible guilt to events pertaining to the Omarska camp, it did not limit the prosecution of Prcac to crimes personally committed by him. The Appeals Chamber considers that, even if Prcac’s other submissions are correct, it does not follow from this that the Trial Chamber accepted all of Prcac’s arguments. The Trial Chamber held in the Decision on the Defence Motions for Acquittal “that sufficient evidence has been presented to keep intact the allegations against Prcac”.¹³⁸⁶ The Appeals Chamber therefore finds that the Decision on the Defence Motions for Acquittal does not support this ground of appeal.
     2. Findings of the Trial Chamber in Prcac’s favour

611. In support of Prcac’s arguments as set out above, Prcac presents a list of the Trial Chamber’s findings which he considers to be in his favour,¹³⁸⁷ and which he contends shows that none of the Prosecution’s allegations contained in the Indictment and its opening statement are true. In response, the Prosecution submits that this list, allegedly gleaned from the Trial Judgement, does not accurately reflect the findings of the Trial Chamber.¹³⁸⁸

612. The Appeals Chamber observes that the Trial Judgement expressly contains a list of findings that serves as the basis for its determination of Prcac’s responsibility in connection with events at the Omarska camp.¹³⁸⁹ When this list is compared with the list of findings submitted by Prcac, it becomes apparent that Prcac has compiled a selective list of findings which are not altogether accurate. It is also evident from the list of findings contained in the Trial Judgement that the Trial Chamber simply did not accept all of Prcac’s arguments at trial and did not find all the allegations of the Prosecution to be untrue.

613. For these reasons, the Appeals Chamber dismisses this ground of appeal.
     C. The identity between the Indictment and the Trial Judgement (ground of appeal 2)

614. Prcac’s second ground of appeal focuses on what he terms the “identity between the Indictment and the [Trial] Judgement”. This ground appears to encompass a variety of overlapping issues from which the Appeals Chamber has distilled the following submissions.
     1. Lack of correspondence between facts pleaded in the Indictment and findings in the Trial Judgement

615. Prcac submits that the “principle of the indictment” was not respected by the Trial Chamber,¹³⁹⁰ with the result that a number of findings of fact were made which were not pleaded in the Indictment . This, it is alleged, was in violation of the principle that a Chamber must “judge only what the prosecution is prosecuting”¹³⁹¹ and the principle that the Trial Chamber does not have the right to indict an accused.¹³⁹² Prcac further submits that the Prosecution should have amended the Indictment to reflect the new charges¹³⁹³ and that, in the absence of this being done, he was not obliged to address any “ alternative indictment”.¹³⁹⁴

616. Prcac argues that the consequences of disregarding the “identity between the Indictment and the Judgement” are manifold.¹³⁹⁵ First, he was not able to “prepare a valid Defence case and respond to the allegations of the prosecution”.¹³⁹⁶ Second, a number of facts essential to his eventual conviction by the Trial Chamber were not properly established.¹³⁹⁷ Finally, there was a violation of the right of the accused to a just and fair trial, as he was not given the opportunity to prepare a proper and comprehensive defence.¹³⁹⁸ In sum, Prcac appears to assert that because the facts alleged in the Indictment were different from those found in the Trial Judgement, he should be acquitted.¹³⁹⁹

617. The Prosecution responds that the Indictment contained all of the requisite allegations to put the Appellants, including Prcac, properly on notice of both the crimes with which they were charged and the conduct underlying the respective charges .¹⁴⁰⁰ In addition, the Appellants “were provided with witnesses’ statements, the successive indictments and the Prosecution’s opening statement”.¹⁴⁰¹ The Prosecution submits that the Defence was not reduced to “a mere blanket denial”, and argues that the time frame of the case was limited and specific and focused further by the Decision on the Defence Motions for Acquittal.¹⁴⁰²

618. The Appeals Chamber notes that Prcac has not set out in detail the inconsistencies between the Indictment and the Trial Judgement that are subject to appeal, except for a reference to the finding that he was an administrative aide. The present sub -ground thus largely repeats sub-ground (2) considered below. The Appeals Chamber also considers that the first and third consequences of disregarding the identity between the Indictment and the Judgement, as alleged by Prcac, overlap. With respect to these alleged consequences, contrary to Prcac’s arguments, the Trial Judgement clearly shows that he made submissions on his status, function, and competence in the Omarska camp.¹⁴⁰³ On these same issues, he engaged in the cross-examination of many of the Prosecution witnesses referred to in the Trial Judgement.¹⁴⁰⁴ The Appeals Chamber observes that the failure to plead the status of Prcac as an administrative aide in the Indictment has not been shown on appeal to have prejudiced Prcac’s ability to mount an extensive defence in this regard. Furthermore, as will be considered in respect of sub-ground (b), below, the Trial Chamber analysed at length the evidence of many Prosecution witnesses concerning Prcac’s position and function in the camp. This sub-ground is therefore dismissed.
     2. Prcac’s position in the camp

619. Prcac submits that he was convicted by the Trial Chamber on the basis of a finding that he held a function in the camp which was neither mentioned in the Indictment,¹⁴⁰⁵ nor subsequently during trial.¹⁴⁰⁶ In the Indictment, Prcac was alleged to have arrived at the Omarska camp in June 1992 to replace Kvocka as deputy camp commander and therefore as a superior to all staff in the camp except for the commander.¹⁴⁰⁷ However, the Trial Chamber found that he did not arrive in June and was not deputy camp commander but was, in fact, an administrative assistant to the “security commander” of the camp.¹⁴⁰⁸ Prcac argues that by ignoring the parameters of the Indictment and finding that he had fulfilled the functions of an administrative assistant, the Trial Chamber improperly took on the role of the Prosecutor and convicted him on the basis of facts with which he was not charged.¹⁴⁰⁹

620. The Prosecution responds that the Trial Chamber found that Prcac did not incur responsibility under Article 7(3) of the Statute, and that his position as deputy camp commander was immaterial to his liability under Article 7(1).¹⁴¹⁰ Further, in the opinion of the Prosecution, the failure of the Indictment to mention Prcac as an “administrative aide” at the camp was not a failure to plead a material fact in relation to the charge under Article 7(1).¹⁴¹¹ The Prosecution also submits that Prcac was clearly on notice that his function was in issue in the proceedings, and that he presented evidence and argument relating to this.¹⁴¹² In addition, the Prosecution contends that, as Prcac has not established that the Trial Chamber returned convictions on the basis of material facts not pleaded in the Indictment, and that if the Trial Chamber did rely on such facts, the trial would have been rendered unfair, this ground of appeal should be dismissed.¹⁴¹³ Prcac replies that the Trial Chamber established that he was an “administrative deputy commander of the camp” on the basis of his “supposed guilt”.¹⁴¹⁴

621. The Appeals Chamber notes that Prcac was charged in the Indictment with superior responsibility under Article 7(3) of the Statute on the basis of his position as deputy commander of the Omarska camp,¹⁴¹⁵ and was not charged as an administrative aide. However, on the basis of the evidence at trial, the Trial Chamber only found Prcac to be an administrative aide to the commander of the camp.¹⁴¹⁶ The issue here is whether the finding that Prcac was an administrative assistant bears on his responsibility, as found by the Trial Chamber, for the crimes committed in the Omarska camp.

622. The Appeals Chamber notes that, while the Trial Chamber found Prcac to have exercised authority in the camp, it acquitted him of superior responsibility pursuant to Article 7(3) of the Statute.¹⁴¹⁷ Instead, the Trial Chamber found Prcac guilty under Article 7(1) as a co-perpetrator in a joint criminal enterprise at the camp, because he “contributed significantly to furthering the efforts of Omarska camp”.¹⁴¹⁸ Such contribution, the Trial Chamber found, was reflected in the fact that:

     Prcac accomplished his duties diligently. He on occasion took down particulars of newly arrived detainees, solved problems related to the accommodation of detainees or the absence of their names on lists, took care of the transfer of detainees from one camp to the other or from one place in the camp to another, either calling detainees out himself or asking guards to do so.¹⁴¹⁹

     This description of Prcac’s duties was not contradicted by the Defence at trial; rather, it was confirmed.¹⁴²⁰ Prcac even referred to himself as an “administrative worker” in his Final Trial Brief.¹⁴²¹ Prcac has therefore failed to show that no reasonable trier of fact could have reached the finding of the Trial Chamber that he was an administrative aide at the camp. More importantly, the Appeals Chamber considers that the title of administrative aide used by the Trial Chamber to describe him is not material to the finding that he was a co-perpetrator in a joint criminal enterprise. The Trial Chamber did not consider the fact of being an administrative aide to be indicative of criminal responsibility. The title itself was given only to sum up his duties, which were different from those of the other guards or their superiors. The Trial Chamber correctly assigned responsibility on the basis of Prcac’s actual duties rather than on the basis of a mere descriptive label. In this case, the finding of participation in a joint criminal enterprise requires that evidence be adduced to show that Prcac intended to contribute and did in fact contribute to furthering the criminal purpose of the camp.¹⁴²² The Appeals Chamber considers that Prcac has also failed to show that no reasonable trier of fact could have reached the finding of the Trial Chamber that he contributed to the joint criminal enterprise at the Omarska camp in a significant way. Accordingly, this sub-ground is dismissed.

623. As a related submission, Prcac argues that the Trial Chamber established his function in the camp as an administrative assistant on the basis of the testimony of only one witness for the Prosecution, which ran counter to testimony from the Prosecution’s 37 other witnesses.¹⁴²³ Since the Prosecution did not establish beyond reasonable doubt that he held the post of deputy commander of the camp, the Trial Chamber should not have concluded that he held the post of an administrative assistant, but should have applied “the principle in dubio pro reo”.¹⁴²⁴ There is no specific response from the Prosecution in relation to this argument, except that both parties presented evidence and arguments in this respect and that it was open to the Trial Chamber to find that his function and duties were different from those alleged in the Indictment.¹⁴²⁵ Prcac replies that the Trial Chamber erred factually in this regard.¹⁴²⁶

624. The Appeals Chamber notes that the Trial Chamber dismissed the allegation preferred by the Prosecution, namely, that Prcac was deputy commander of the Omarska camp, and that this dismissal was material to the determination of Prcac’s overall responsibility for the crimes committed at the camp. The Appeals Chamber also notes that the Trial Chamber analysed at length the evidence of many prosecution witnesses concerning Prcac’s function and position in the camp,¹⁴²⁷ and that it finally decided this matter in Prcac’s favour. There was, therefore, no doubt as to Prcac’s function in the camp. As has been stated above, the post of an administrative aide was not deemed criminal as such by the Trial Chamber.¹⁴²⁸ It was the duties Prcac discharged at the camp that convinced the Trial Chamber of his criminal responsibility. The Appeals Chamber considers that Prcac has failed to show that the finding that he was an administrative aide, which was a title not pleaded in his Indictment, is a factual error that has resulted in a miscarriage of justice. This sub-ground of appeal is dismissed.
     D. Errors of fact and law on the part of the Trial Chamber (ground of appeal 3)

625. Prcac argues that the Trial Chamber’s interpretation of the evidence and statements presented at trial was “completely erroneous”. He submits that, had such errors not been committed, the Trial Chamber “would have certainly rendered a judgement of acquittal”.¹⁴²⁹ Prcac points to a number of specific examples in support of his argument. These can usefully be divided into errors relating to Prcac’s administrative function, errors regarding Prcac’s role in the preparation and reading of lists of detainees, and other errors. Prcac also submits that there were still more errors in the Trial Judgement but that their impact was “not significant” on the verdict.¹⁴³⁰ Since Prcac has not made submissions on these alleged errors, the Appeals Chamber will not consider them.
     1. Errors relating to Prcac’s administrative function

     (a) Prcac never admitted that he was an administrative assistant to Meakic

626. Prcac argues that the Trial Chamber erroneously ascertained from his Pre-Trial Brief that he was essentially claiming that he was merely an administrative aide to Zeljko Meakic in the Omarska camp.¹⁴³¹ Prcac contends that he never claimed this, only that he performed administrative work on an ad hoc basis.¹⁴³² Thus, according to Prcac, the Trial Chamber should have acquitted him in the absence of crucial proof.¹⁴³³ The Prosecution responds that the Trial Chamber never found that Prcac held the formal position of “administrative aide” to Zeljko Meakic at the camp, and that this term was only used by the Trial Chamber to sum up the nature of Prcac’s duties.¹⁴³⁴

627. The Appeals Chamber finds that Prcac’s argument is unfounded. Paragraph 432 of the Trial Judgement reads, in relevant part, “[e]ssentially, the Defense claims that Prcac was merely an administrative aide to Zeljko Meakic in Omarska camp and that no evidence established that Prcac was a deputy commander”.¹⁴³⁵ As a close reading of this paragraph demonstrates, the Trial Chamber never stated that Prcac claimed to have held a formal administrative position. In asserting that the Defence was, in essence, claiming that Prcac was merely an administrative aide, the Trial Chamber was simply summing up the nature of Prcac’s duties at the camp on the basis of the evidence presented at trial, including Prcac’s own submissions that he worked as an “administrative worker”.¹⁴³⁶ The Trial Chamber’s assessment of that evidence is entirely reasonable. Indeed, the Appeals Chamber observes that, even on appeal, Prcac notes that, in the Defence Motions for Acquittal, he stated that he inter alia “worked as an administrative clerk”.¹⁴³⁷ This sub-ground of appeal is therefore dismissed.

     (b) Prcac’s administrative duties were not described in testimony at trial

628. Prcac argues that the Trial Chamber erroneously ascertained that “SmCany prosecution witnesses supported Prcac’s description of his administrative duties in the camp ”.¹⁴³⁸ According to Prcac, none of those witnesses described his duties as being administrative, nor did anything in their trial testimony indicate that he was “in charge of administrative work” at the camp.¹⁴³⁹ Instead, they only testified to the effect that when they saw Prcac, which was rare, “he was usually carrying some papers or a notebook with him”.¹⁴⁴⁰ The Prosecution responds that Prcac was never actually found to have been in charge of administrative work at the camp, and the fact that no witnesses support such a finding is therefore immaterial.¹⁴⁴¹

629. The Appeals Chamber agrees with the Prosecution that Prcac was never found by the Trial Chamber to have been in charge of administrative work at the camp. Thus, his argument that nothing in the testimony of Witness F, Nusret Sivac, Omer Mesan, Zlata Cikota and Witness J supports such a conclusion is without merit. Prcac’s argument that the Trial Chamber erroneously ascertained that many witnesses described his duties in the camp as administrative is likewise unfounded. The Trial Chamber’s finding that Prcac was an administrative aide was based on the nature of the tasks he performed in the camp, as described by numerous Prosecution witnesses, as well as by Prcac himself, and not on any label used to describe these tasks. Moreover, since Prcac was never found by the Trial Chamber to have held a formal position of “administrative aide”, the Appeals Chamber is of the view that the lack of more explicit references in the evidence presented at trial to the administrative nature of Prcac’s work at the camp is immaterial. This sub-ground of appeal is thus dismissed.

     (c) The evidence of witness Omer Mesan

630. The Trial Chamber found that “[m]any Prosecution witnesses supported Prcac’s description of his administrative duties in the camp and testified that they saw Prcac moving around the camp carrying lists. However, they also ascribed more responsibility or influence to Prcac than he acknowledged”.¹⁴⁴² Among these witnesses was Prosecution witness Omer Mesan who testified that “Prcac would act independently when he was calling out the names of detainees from his lists and make decisions related to the absence of detainees’ names on lists.”¹⁴⁴³

631. According to Prcac, the Trial Chamber overlooked the fact that Omer Mesan could not identify him in court. Prcac thus considers the Trial Chamber to have erred in relying on the testimony of this witness in respect of its findings on Prcac’s influence, authority and independence in decision-making at the camp.¹⁴⁴⁴

632. The Prosecution counters by raising three arguments. First, it contends that the Trial Chamber expressly stated that witness Omer Mesan failed to identify Prcac in court and that it can therefore be concluded that the Trial Chamber took this into account in determining the weight to be given to the evidence of this witness.¹⁴⁴⁵ Second, it argues that the identification of Prcac as the person who would always be handling and carrying around lists was based on the evidence of several witnesses of whom Omer Mesan was only one.¹⁴⁴⁶ Third, the Prosecution submits that in any case, the evidence of Omer Mesan relied upon by the Trial Chamber relates to the nature of Prcac’s role and functions at the camp, and not to any crime with which Prcac was charged in the Indictment. As such, according to the Prosecution, the standard of proof is not that of “beyond reasonable doubt”.¹⁴⁴⁷

633. Prcac replies that the Trial Chamber concluded that he was able to make independent decisions and contribute “considerably” to the functioning of the camp based on the testimony of only two witnesses, namely Omer Mesan and Nusret Sivac.¹⁴⁴⁸ Further, Prcac submits that the description of him provided by witness Omer Mesan “could refer to half of the inhabitants of (the( village of Omarska”.¹⁴⁴⁹

634. The Appeals Chamber finds that Prcac has failed to demonstrate that the Trial Chamber erred in relying on the testimony of Prosecution witness Omer Mesan. The Trial Judgement expressly notes that “Omer Mesan could not identify Prcac in Court.”¹⁴⁵⁰ It follows from this that the Trial Chamber took into account the failure to identify Prcac when considering the weight to be ascribed to Omer Mesan’s evidence. In addition, the Appeals Chamber notes that the failure to identify an accused in court does not necessarily negate facts which may otherwise be established on the basis of the evidence presented at trial by the “identifying” witness.¹⁴⁵¹ In any case, the Appeals Chamber finds that the Trial Chamber based its conclusion that Prcac had some influence in the camp on the totality of evidence, which included the evidence of Witness F, Nusret Sivac, Zlata Cikota, Witness J, Witness AN, Sifeta Susic, Azedin Oklopcic, Witness B, Witness K, Edin Mrkalj, Abdulah Brkic, Kerim Mesanovic, Witness AT, and Witness U, in addition to the testimony of Omer Mesan. Accordingly, and without needing to deal with all of the Prosecution’s points, this sub-ground of appeal is dismissed.
     2. Prcac’s role regarding the lists of detainees

     (a) Prcac’s role in compiling the lists of detainees

635. Prcac challenges the Trial Chamber’s findings on his responsibility for the handling of lists of detainees who were to be interrogated, transferred, exchanged or released.¹⁴⁵² According to Prcac, there were two types of lists at the camp: the first type consisted of names of newly arrived detainees for the purpose of record-keeping, and the second type contained names of detainees who, according to the evidence given at trial, were beaten, tortured or never seen again after being called out.¹⁴⁵³ Prcac claims that, in the absence of any concrete proof, the Trial Chamber erred in finding that he was in charge of the composition and reading out of lists of detainees¹⁴⁵⁴ and that, while he sometimes composed the first type of list,¹⁴⁵⁵ he was not in any way responsible for the composition of the second type of list.¹⁴⁵⁶

636. The Prosecution responds that it is unnecessary for the Appeals Chamber to consider Prcac’s submissions on this matter, since the Trial Chamber made no findings in this respect.¹⁴⁵⁷ Moreover, Prcac appears to be asking the Appeals Chamber to make de novo factual findings relating to the nature of the lists and who was responsible for composing them, which the Prosecution submits is “inconsistent with the appellate function”.¹⁴⁵⁸ Finally, the Prosecution argues that the Trial Chamber never found that Prcac was in charge of the composition of such lists, but that it considered this matter, together with evidence of other tasks and functions performed by Prcac at the camp, to reach the general conclusion that Prcac’s administrative duties contributed to the system of gross mistreatment at Omarska.¹⁴⁵⁹ Prcac replies that the Trial Chamber based its finding that he had decision-making power, authority and influence at the camp on the fact that he compiled lists of prisoners who were transferred, tortured or never seen again after having their names called out.¹⁴⁶⁰

637. The Appeals Chamber cannot find any error on the part of the Trial Chamber with respect to its findings on Prcac’s responsibility for the handling of lists of detainees at the camp. As the Trial Chamber never found Prcac to have been in charge of the composition and reading out of lists of detainees, Prcac’s argument that the evidence presented at trial does not support such a conclusion is irrelevant. Prcac’s claim that the Trial Chamber found that he exercised authority at the camp solely on the basis that he compiled lists of detainees is likewise without merit. The Appeals Chamber points out that the handling of lists of detainees was found to have been one of Prcac’s tasks at the camp which, together with the other tasks he was found to have performed, was indicative of the nature of his duties and position of authority at the camp. As such, the Appeals Chamber finds no reason to disturb the findings of the Trial Chamber on this matter. This sub-ground of appeal is dismissed.

     (b) Prcac’s reading out lists of detainees

638. Paragraph 433 of the Trial Judgement reads, in relevant part: “In the Defense brief, Prcac’s tasks in the camp are described as follows. His job was: … (4) to read the list of the detainees who were to be transferred.” Prcac challenges this paragraph and alleges the Trial Chamber misquoted his Final Trial Brief with respect to his duties at the camp.¹⁴⁶¹

639. Prcac argues that, whereas his Final Trial Brief refers to two specific occasions on which he read out lists of detainees who were to be transferred, paragraph 433 of the Trial Judgement implies that he claimed to have permanently performed this duty, that he was informed of the fate of the detainees, and that he was the only person performing that duty at the camp.¹⁴⁶² Prcac asserts that the persons whose names he read out were transferred to other camps and that they are still alive.¹⁴⁶³ The Prosecution responds that paragraph 433 of the Trial Judgement was clearly intended to paraphrase the relevant paragraph of Prcac’s Final Trial Brief and, as such, did not constitute a departure from the Defence’s description of Prcac’s duties at the camp.¹⁴⁶⁴ The Prosecution also argues that the Trial Chamber’s findings with respect to the reading out of lists by Prcac were based on the evidence of various witnesses, not just that of Prcac, and that Prcac’s conviction was not based solely on the Trial Chamber’s finding that he carried around lists of detainees who were to be called out for interrogation, transfer, exchange, or release.¹⁴⁶⁵

640. The Appeals Chamber finds Prcac’s submissions to be without merit. It is evident that paragraph 433 of the Trial Judgement presents the Defence’s submissions on Prcac’s duties at the camp as set out in its Final Trial Brief, and does not depart in substance from those submissions. The Trial Chamber merely stated that, according to the Defence’s Final Trial Brief, one of Prcac’s tasks was to read out the list of detainees to be transferred.¹⁴⁶⁶ The Trial Chamber then recalled in the next paragraph¹⁴⁶⁷ that, in his interview with the Prosecution, Prcac mentioned two particular occasions on which he had called out the names of detainees to be transferred to Trnopolje or to be exchanged. The Trial Chamber never stated that Prcac claimed to have performed that task on a frequent basis or that he was the only one doing so. Furthermore, the Appeals Chamber observes that the occasions on which Prcac was found to have read out lists of detainees were merely considered by the Trial Chamber to have provided evidence of the nature of his duties at the camp and in no way constituted a crime for which he was convicted. Thus, there would be no impact on Prcac’s conviction or sentence even if the persons whose names Prcac read out were found to be alive. Accordingly, this sub-ground of appeal is dismissed.

     (c) Prcac did not know the fate of the detainees who were called out and left the camp

641. Prcac claims that, as he had no knowledge of the fate of the detainees who, after being called out from the lists, were never seen again, the Trial Chamber erred in holding him criminally responsible for what happened to them.¹⁴⁶⁸ The Prosecution responds that this argument is immaterial to the Trial Chamber’s findings on Prcac’s criminal responsibility, since it was expressly found that he was not directly involved in committing specific crimes against detainees. Rather, his criminal responsibility was based on his participation in a joint criminal enterprise under Article 7(1) of the Statute and, as such, it is immaterial whether his acts or omissions were illegal in themselves.¹⁴⁶⁹

642. The Appeals Chamber points out that Prcac was not found to have been accountable for any specific crimes against detainees. Rather, he was found to have participated in a joint criminal enterprise of persecution at the Omarska camp. Accordingly, whether or not Prcac was aware of the fate of the detainees who were never seen again is immaterial to his criminal responsibility under Article 7(1) of the Statute. This sub-ground of appeal, therefore, fails.
     3. Other Errors

     (a) The Trial Chamber refused to accept the submission that Prcac came to the camp against his will

643. At trial, Prcac argued that he went to the Omarska camp under duress. However, this allegation was not accepted by the Trial Chamber. Paragraph 427 of the Trial Judgement reads as follows:

     During trial [Prcac] insisted that he went to the camp “under duress”. Some Defense witnesses testified to this effect. Prcac’s son, Ljubisa Prcac, testified that his father told him that Simo Drljaca threatened him “with the life of his children and the burning of his house”. Obrad Popovic, one of the porters at Omarska camp, testified that he saw Simo Drljaca conversing with Prcac, who later told him that Drljaca had threatened him. The Trial Chamber notes, however, that Prcac never mentioned any threats when he was interviewed by the Prosecution. The Trial Chamber is not convinced that these threats took place and does not accept his assertion that he worked at the camp under duress.¹⁴⁷⁰

     Prcac challenges the conclusion reached by the Trial Chamber and argues that his arrival at the Omarska camp under duress evidences his lack of will to participate in any joint criminal enterprise.¹⁴⁷¹ According to Prcac, the Trial Chamber’s conclusion is based on its finding that he “never mentioned any threats when he was interviewed by the Prosecution”. He claims that this finding is erroneous.¹⁴⁷² Prcac submits that he did state in his interview with the Prosecution that he went to the camp under threat,¹⁴⁷³ that he raised this again in his Pre-Trial Brief and opening statement, and that two witnesses corroborated his assertion.¹⁴⁷⁴

644. The Prosecution responds that the Trial Chamber’s finding that Prcac did not mention any threats in his interview with the Prosecution is not erroneous since the conclusion is to be read in the context of the direct threats made by Simo Drljaca, as referred to by Defence witnesses Ljubisa Prcac and Obrad Popovic. However, Prcac only referred to an indirect threat in his interview.¹⁴⁷⁵ The Prosecution also submits that the Trial Chamber’s rejection of Prcac’s argument was based on its consideration of the evidence as a whole, including the absence of any submissions of Prcac relating to “any genuine fear that he felt as result of any such threats that harm would come to him if he refused to work in the camp ”.¹⁴⁷⁶

645. The Appeals Chamber considers that, even if Prcac’s statement in his interview with the Prosecution provided evidence that he may have gone to the camp under duress, in the absence of any further evidence that Prcac continued to work at the camp as a result of such duress, the Trial Chamber’s finding is entirely reasonable. This is especially so in light of its finding with respect to Radic, namely that “guards could come and go from their assignments in the camp without suffering repercussions.”¹⁴⁷⁷ The Appeals Chamber also notes that the evidence presented at trial does not support such a conclusion. Moreover, the Trial Chamber based its finding on the evidence as a whole, including, in particular, the testimony of defence witnesses Ljubisa Prcac and Obrad Popovic, in addition to the arguments contained in Prcac’s Pre-Trial Brief and his opening statement. The assertion that Prcac never mentioned any threats in his interview with the Prosecution was only one of the factors relevant to the finding. In light of the totality of material available to the Trial Chamber, the Appeals Chamber is of the view that Prcac has not established that no reasonable trier of fact could have found that he did not work at the camp under duress. This sub-ground of appeal is, therefore, dismissed.

     (a) Prcac’s role in the moving of detainees between the rooms

646. Prcac challenges the Trial Chamber’s findings that he “on occasion … took care of the transfer of detainees from one camp to the other or from one place in the camp to another”,¹⁴⁷⁸ and that he was “responsible for managing the movement of detainees within the camp, under the orders of the investigators and Zeljko Meakic, and with the assistance of all guards”.¹⁴⁷⁹ Prcac argues that the Trial Chamber erred in finding that he alone was responsible for the moving of detainees within the camp, claiming that this finding was based solely on the testimony of prosecution witness Nusret Sivac and disregarded the other evidence.¹⁴⁸⁰ According to Prcac, this witness testified that, in order to move from one room to another, it was necessary to obtain special permission from Prcac. Prcac argues that no special permission was necessary for detainees to move from room to room, and he points to the testimony of several witnesses, none of whom needed special permission to move within the camp.¹⁴⁸¹

647. The Prosecution argues that Prcac relies heavily on the testimony of witness Mirko Jesic to substantiate his arguments, but that, having thoroughly considered that testimony, the Trial Chamber was entitled to give Mirko Jesic’s evidence little or no weight on this matter.¹⁴⁸² In addition, the Prosecution submits that the Trial Chamber never found that the authority to move detainees within the camp was solely vested in Prcac, or that Nusret Sivac ever testified to that effect.¹⁴⁸³

648. The Appeals Chamber notes that the Trial Chamber never found that special permission was required for detainees to move within the camp, or that this permission could only be obtained from Prcac. Prcac’s argument that, other than Nusret Sivac, no other witness supports such a finding is therefore irrelevant. The Appeals Chamber also points out that the Trial Chamber never found that it was exclusively within Prcac’s competence to control the movement of detainees inside the camp. Rather, the Trial Chamber found that Prcac’s duties with respect to the movement of detainees were carried out under the orders of the investigators, who did not form part of the “security service” of the camp,¹⁴⁸⁴ and Zeljko Meakic as well as with the assistance of guards.¹⁴⁸⁵ Prcac’s argument that the Trial Chamber should have attributed more credibility and importance to the evidence of other witnesses than to that of Nusret Sivac is likewise without merit. Aside from merely asserting this proposition, Prcac does not explain why this should be so. The Appeals Chamber thus finds that Prcac has failed to establish that no reasonable trier of fact could have found that he was responsible for managing the movement of detainees within the camp. This sub-ground of appeal is dismissed.

649. For these reasons, this ground of appeal is dismissed.
     E. Credibility of witnesses (ground of appeal 4)
     1. Inconsistencies between testimony and witness statements

650. Prcac argues that, in the Trial Judgement, the Trial Chamber did not provide “a single explanation” as to the credibility of witnesses, or as to whether it accepted as credible, and if so to what degree, the testimony of a certain witness.¹⁴⁸⁶ He contends that many Prosecution witnesses “failed to answer the simplest questions ”,¹⁴⁸⁷ or gave testimony that was inconsistent with their depositions.¹⁴⁸⁸ As examples, Prcac submits that the testimony of Azedin Oklopcic and Witness K were inconsistent with their written statements, and that their testimony made a “considerable contribution to the findings that the accused gave a more substantial contribution to the functioning of the camp than the ordinary guards and typists”.¹⁴⁸⁹

651. The Prosecution submits that it is unclear whether Prcac is asserting that the Trial Chamber erred in failing to consider these inconsistencies, or that the Trial Chamber erred by failing to refer to them in its Judgement. According to the Prosecution, the Trial Chamber did make numerous findings as to the credibility of witnesses.¹⁴⁹⁰ The Prosecution emphasizes that the evidence given by witness Oklopcic did not play any major role in the Trial Chamber’s reasoning so as to establish prejudice.¹⁴⁹¹ The testimony of Witness K provided evidence favourable to Prcac, namely that he arrived at the camp in mid-July, and this evidence was accepted by the Trial Chamber.¹⁴⁹² Further, the credibility of this witness was examined in relation to the case of Radic, and the Trial Chamber could not be expected to repeat its analysis of a particular witness’ testimony undertaken in another part of the Trial Judgement to prevent criticism.¹⁴⁹³ The Prosecution submits that, in his attempt to show that the finding of the Trial Chamber was unreasonable, Prcac has not put forward any argument that was not raised during the trial, but that he is seeking a de novo assessment by the Appeals Chamber.¹⁴⁹⁴

652. In his reply, Prcac contends that Witness K claimed that Prcac had issued orders to the guards, but when cross-examined by the Defence, the witness admitted he had never heard Prcac give any order, and that it was the assumption of the witness that he had done so. Prcac points out that with respect to Witness J’s testimony, even though the witness claimed that 30 prisoners had disappeared after Prcac called them out, during cross-examination the witness could not recall the name of a single one of those prisoners.¹⁴⁹⁵

653. The Appeals Chamber begins by noting that, contrary to Prcac’s argument, the Trial Judgement is full of references relating to the assessment of the credibility of witnesses.¹⁴⁹⁶ Turning to the specific examples raised by Prcac, the Appeals Chamber notes that Azedin Oklopcic’s evidence was discussed by the Trial Chamber in support of its finding that Prcac was “assumed” by many witnesses to hold a position of authority at the Omarska camp.¹⁴⁹⁷ However, the alleged inconsistency between Azedin Oklopcic’s testimony and his earlier statements relates to his failure to mention Prcac in the list of the most responsible persons in the camp which he compiled in January 1993, while in his testimony he considered Prcac to be a commander of the camp.¹⁴⁹⁸ The Appeals Chamber observes that this inconsistency, if deemed so, would have had no impact on Prcac’s conviction given that the Trial Chamber did not find that he was deputy commander of the camp. The Appeals Chamber also considers that the fact that the witness in his testimony considered Prcac to be “one of the leaders” in the camp does not conflict with the fact that he did not include Prcac in his list of the most responsible persons in the camp. The witness did not include Prcac’s name on his list because he saw him the least in the camp and, for him, Prcac was “not as important at the time as the others” who were named on the list.¹⁴⁹⁹ In addition, witness Oklopcic stated that his list was not exhaustive.¹⁵⁰⁰ The situation is thus not one in which the witness did not recognise the accused during the time the witness was detained in the camp.

654. Turning to Prcac’s challenge to the evidence of Witness K, the Appeals Chamber notes that the credibility of this witness’ evidence was tested during the cross -examination of the witness by the Defence.¹⁵⁰¹ The Appeals Chamber further notes that the part of Witness K’s evidence referred to by the Trial Chamber pertains to the fact that the witness saw Prcac giving assignments to the guards at the camp. This fact, however, does not bear on the list of names which, according to Prcac’s submissions on appeal, the witness gave to the Prosecution, and which Prcac relies on in his appeal to impeach the credibility of the witness, as shown above by Prcac’s arguments in this regard.¹⁵⁰² With respect to the challenge to the evidence of Witness J, the Appeals Chamber recalls that Prcac was not found guilty of any crime relating to the reading out of lists of names. Rather, this was considered to indicate his status in the camp. As a result, the failure of Witness J to provide the name of one of those persons called out is not a determining factor. This is especially so given Prcac’s admission that he read out lists of names. Prcac has therefore failed to identify a factual or legal error in terms of Article 25 of the Statute. Accordingly, this sub-ground is dismissed.
     2. ‘False testimony’

655. Prcac argues that the testimony of some witnesses was inconsistent with the “real situation” and contained “falsehoods”.¹⁵⁰³ He refers in particular to a video-recording of the Omarska camp, presented at trial as exhibit D38/5, to show that the testimony of some prosecution witnesses was not consistent with the “real situation”, thus undermining their credibility.¹⁵⁰⁴ He also alleges that many of the female witnesses who testified at trial were receiving group therapy, leading over time to the creation of certain joint conclusions relating to persons present and events taking place in the Omarska camp.¹⁵⁰⁵ In addition, Prcac challenges the Trial Chamber’s acceptance of witness testimony without appraising the credibility of the witnesses concerned, in particular that of witness Nusret Sivac.¹⁵⁰⁶

656. The Prosecution submits that the Trial Chamber did not accept the entirety of the witnesses’ evidence,¹⁵⁰⁷ and that the criticism of Prcac is not specific enough to establish that the Trial Chamber erred in law or in fact in its treatment of their testimony.¹⁵⁰⁸ In the view of the Prosecution, the assessment by the Trial Chamber of the evidence of witnesses in paragraphs 435-445 of the Trial Judgement was not unreasonable.¹⁵⁰⁹

657. The Appeals Chamber considers that Prcac does not identify any particular finding of the Trial Chamber he is challenging through this sub-ground. If it is the finding that he was an administrative aide that is under appeal, as would seem to be the case from his Appeal Brief,¹⁵¹⁰ Prcac has not shown the relevance of exhibit D38/5 to the allegedly differing testimony of certain witnesses in relation to that finding. If, however, Prcac intends to challenge the credibility of witnesses, the Appeals Chamber finds that he already did so at trial. Prcac himself has shown that the Trial Chamber was aware of this issue, and in fact rejected Witness A’s evidence on the basis of its lack of credibility.¹⁵¹¹ The Appeals Chamber also considers that on appeal he has failed to identify the material fact with respect to which these witnesses gave false evidence. The reference to exhibit D38/5 and the group therapy sessions is insufficient to support this sub-ground. this sub-ground is therefore dismissed.
     3. Defence witnesses

658. Prcac submits that all of the witnesses for the Defence were eyewitnesses,¹⁵¹² and also credible witnesses.¹⁵¹³ He claims that the Trial Chamber erred in not explaining whether it believed the testimony of witness Jesic and himself,¹⁵¹⁴ and that it should have established the credibility of each particular witness for the Prosecution and for the Defence.¹⁵¹⁵ The Prosecution responds that the Trial Chamber cannot be reasonably expected to map out in its Judgement its findings in relation to every single witness, that the Trial Chamber determined the relevance and probative value of the evidence given by many witnesses, and that, in this regard, evidence of witnesses can be procedural, substantive or crime-based.¹⁵¹⁶

659. The Appeals Chamber considers that the Trial Chamber was entitled to exercise discretion in its assessment of evidence presented by all parties to the case, in accordance with the relevant Rules of Procedure and Evidence. Whether all of the Defence or Prosecution witnesses were credible was a matter for the Trial Chamber to decide. The Trial Judgement need not contain findings as to the credibility of each and every witness heard.¹⁵¹⁷ Determinations as to the credibility of witnesses are bound up in the weight afforded to their evidence, as is readily apparent from any Trial Judgement. The Appeals Chamber also notes that Prcac is not arguing that some or all of the Prosecution witnesses were not eye-witnesses or that they did not have first-hand knowledge about what they testified to before the Trial Chamber. Prcac has therefore failed to make out a factual or legal error under this sub-ground, and it is accordingly dismissed.
     F. Fair trial and equality of parties (ground of appeal 5)

660. Prcac claims that there was a breach of his right to a fair trial since he was not given “even a minimum time and possibility to prepare for a proper cross -examination and presentation of evidence” of ten witnesses.¹⁵¹⁸ Prcac raises three arguments under this ground relating to: (i) the principle of indictment and identity, (ii) the disclosure obligations of the Prosecution, and (iii) the motion by Prcac relating to the disclosure of evidence from the Keraterm case. In response, the Prosecution generally refers to the efforts undertaken by the Trial Chamber during the trial to rebut the arguments of Prcac. It also claims that Prcac’s position is “inconsistent with the overtures and assurances he made to the Trial Chamber”.¹⁵¹⁹
     1. The principle of identity of the Indictment and the Judgement

661. The first argument of Prcac under this ground of appeal is that the Trial Chamber disregarded the “principle of indictment and identity” which was discussed in Part III of his Appeal Brief.¹⁵²⁰ The Appeals Chamber refers to its discussion under the relevant heading of this Judgement,¹⁵²¹ and dismisses this argument.
     2. Delay in disclosure and introduction of new witnesses

662. Prcac’s second argument relates to the disclosure of evidence and the introduction of new witnesses.¹⁵²² He claims that the Prosecution failed to disclose evidentiary material or did so with delay, and that it changed the list of witnesses and called witnesses who were not on the list.¹⁵²³ He uses the testimony of witness Azedin Oklopcic as an example, claiming that the evidence relevant to this witness was not disclosed to the Defence until the moment the witness completed his testimony.¹⁵²⁴ In addition, he submits that the Trial Chamber allowed the Prosecution to change the list of witnesses so that it could bring in eight new witnesses, among them Witness K and Nihad Haskic.¹⁵²⁵ Prcac submits that, as a result, the Defence was not able to prepare adequately for cross-examination.¹⁵²⁶

663. The Prosecution responds that the issue of timely disclosure was raised during the trial proceedings, that Prcac agreed that the Prosecution had done all it was required to do, and that this issue cannot be raised on appeal.¹⁵²⁷ It further submits that the Trial Chamber was not one-sided in its approach to the issue of the evidence of witnesses, and it refers to requests from Prcac that were granted by the Trial Chamber.¹⁵²⁸ As to Azedin Oklopcic, the Prosecution asserts that Prcac’s submission is not supported by the trial record, which reveals that Prcac, through his counsel and on behalf of the entire Defence, accepted to rectify the late disclosure of evidence through a three-day adjournment.¹⁵²⁹ The Prosecution submits that Prcac has not shown that the conclusion of the Trial Chamber as regards Witness K’s testimony is unreasonable, or that his capacity to effectively cross-examine this witness was hampered in any way.¹⁵³⁰ The Prosecution also emphasizes that Prcac concedes that no harm was done to his case by the testimony of Nihad Haskic, and that there was therefore no prejudice to him since the evidence adduced did not incriminate Prcac.¹⁵³¹

664. In addition, the Prosecution points out that during the proceedings the Trial Chamber ruled in its favour regarding the revision of the witness lists, and that the Appeals Chamber subsequently declined to consider the decision allowing the revision of the additional list of witnesses, noting the strictures imposed by the Trial Chamber on the Prosecution to guarantee fairness with regard to disclosure. ¹⁵³² The Prosecution argues that Prcac has not raised any new arguments which he did not raise at trial.¹⁵³³ The Prosecution submits that, according to the case-law of the Tribunal, any prejudice resulting from the revision of witness lists can be cured through the opportunity to cross-examine witnesses, and that in this case the opportunity was open to Prcac and indeed he seized it.¹⁵³⁴

665. The Appeals Chamber considers that Prcac is bringing submissions which have already been dealt with either by the Trial Chamber or the Appeals Chamber during his trial.¹⁵³⁵ There is, furthermore, no merit in Prcac’s submissions regarding delayed disclosure or the revision of witness lists. This sub-ground of appeal is dismissed.
     3. The Trial Chamber failed to rule on a motion

666. Prcac argues that the Trial Chamber failed to rule on the motion of the Defence for access to trial transcripts from the Sikirica case.¹⁵³⁶ The Prosecution responds that the Trial Chamber specifically ruled on the oral motion (T. 12004-12006),¹⁵³⁷ and that Prcac has not demonstrated any prejudice or any error in law or in the exercise of the Trial Chamber’s discretion.¹⁵³⁸ The Prosecution points out that the parties agreed in particular that only complex matters would be the subject of written decisions,¹⁵³⁹ and so the Trial Chamber exercised its discretion in a reasonable manner.¹⁵⁴⁰

667. The Appeals Chamber notes that the oral motion of Prcac was raised in court on 28 May 2001, and that the Trial Chamber made an oral ruling on it immediately.¹⁵⁴¹ Prcac has failed to show any error on the part of the Trial Chamber in connection with the oral motion in question. This sub-ground of appeal is therefore dismissed.
     VII. SENTENCING
     A. General considerations

668. Articles 23 and 24 of the Statute and Rules 100 to 106 of the Rules contain general guidelines relating to sentencing. Trial Chambers are obliged to take these provisions into account when determining a sentence.¹⁵⁴² However, they do not amount to “binding limitations on a Chamber’s discretion to impose a sentence”.¹⁵⁴³ While there is no definitive list of sentencing guidelines,¹⁵⁴⁴ the Appeals Chamber has previously noted:

     The combined effect of Article 24 of the Statute and Rule 101 of the Rules is that, in imposing a sentence, the Trial Chamber shall consider the following factors : (i) the general practice regarding prison sentences in the courts of the former Yugoslavia; (ii) the gravity of the offences or totality of the conduct; (iii) the individual circumstances of the accused, including aggravating and mitigating circumstances ; (iv) credit to be given for any time spent in detention pending transfer to the International Tribunal, trial, or appeal; and (v) the extent to which any penalty imposed by a court of any State on the convicted person for the same act has already been served.¹⁵⁴⁵

669. Sentencing is essentially a discretionary process on the part of a Trial Chamber.¹⁵⁴⁶ The Appeals Chamber reiterates that “[t]he task of hearing, assessing and weighing the evidence presented at trial is left to the Judges sitting in a Trial Chamber”.¹⁵⁴⁷ It also affirms that “[a]ppellate proceedings do not constitute a trial de novo and are, rather, of a ‘corrective nature.’”¹⁵⁴⁸ It is for these reasons that the Appeals Chamber will not substitute its own sentence for that imposed by the Trial Chamber unless it can be shown that the Trial Chamber made a “discernible error”,¹⁵⁴⁹ and, in so doing, ventured outside its discretionary framework.¹⁵⁵⁰ It is therefore incumbent upon the Appellants to establish such an error on the part of the Trial Chamber.
     B. Kvocka Appeal against Sentence

670. The Trial Chamber sentenced Kvocka to seven years’ imprisonment and Kvocka appeals this sentence. He puts forward three principal arguments. First, he challenges a number of the Trial Chamber’s factual findings. Second, he argues that the Trial Chamber should have taken certain mitigating factors into account when it determined his sentence. Third, he considers that his sentence is disproportionate in comparison with others imposed by the Tribunal.
     1. Factual inaccuracies in the Trial Judgement

671. Kvocka contends that there were inadequate facts to support the Trial Chamber’s conclusion that Meakic was the commander of the camp and that he was the deputy commander. He further considers that these conclusions contradict others reached by the Trial Chamber.¹⁵⁵¹ In addition, Kvocka contends that the Trial Chamber decided his sentence on the basis of these incorrect factual determinations.¹⁵⁵² Kvocka submits that a re-evaluation of his conviction and sentence is also required in light of the Prosecution’s admission that it did not prove certain murder, rape and sexual assault charges.¹⁵⁵³

672. The Appeals Chamber considers that the issues raised relate primarily to Kvocka’s conviction and not to the determination of his sentence, and notes at this stage that the arguments have already been considered and addressed elsewhere in this Judgement.¹⁵⁵⁴
     2. Failure to consider certain mitigating factors

673. Kvocka argues that he “did not pay much attention” to presenting mitigating circumstances at trial given that he was of the opinion that there was insufficient evidence on which he could be convicted.¹⁵⁵⁵ On appeal, he argues that the Appeals Chamber should “consider all extenuating circumstances ” and “considerably mitigate” his sentence.¹⁵⁵⁶ He contends that insufficient weight was given inter alia to his “short stay in the camp … personality … actions, family and personal background”.¹⁵⁵⁷ In response, the Prosecution contends that the decision not to present any mitigating evidence was Kvocka’s litigation strategy and that his submission should be rejected.¹⁵⁵⁸

674. The Appeals Chamber notes that mitigating evidence was in fact adduced before the Trial Chamber.¹⁵⁵⁹ As regards additional mitigating evidence that was available, though not raised, at trial, the Appeals Chamber does not consider itself to be the appropriate forum at which such material should first be raised.¹⁵⁶⁰ Rule 85(A)(vi) provides that a Trial Chamber will consider “any relevant information that may assist the Trial Chamber in determining an appropriate sentence if the accused is found guilty on one or more charges in the indictment”. In this regard, the following passage from Kupreskic should be reiterated:

     If an accused fails to put forward any relevant information, the Appeals Chamber does not consider that, as a general rule, a Trial Chamber is under an obligation to hunt for information that counsel does not see fit to put before it at the appropriate time.¹⁵⁶¹

675. With respect to the weight to be afforded to mitigating circumstances, the jurisprudence of the International Tribunal is clear: the Trial Chamber has considerable discretion.¹⁵⁶² It is incumbent upon the appellant to show that the Trial Chamber erred in exercising its discretion . Mere recital of mitigating factors without more does not suffice to discharge this burden.

676. Kvocka does raise three particular factors which he considers the Trial Chamber failed to take into account, namely, his character,¹⁵⁶³ his role as a conscientious and responsible police officer,¹⁵⁶⁴ and the reasons surrounding his dismissal from the camp.¹⁵⁶⁵

     (a) Character

677. The Trial Chamber clearly had Kvocka’s personality in mind when sentencing him, since the Trial Judgement notes that “(t(he Trial Chamber is also persuaded that Kvocka is normally of good character.”¹⁵⁶⁶ While no express reference is made to the Expert psychological reports, which Kvocka raises on appeal,¹⁵⁶⁷ the Appeals Chamber reiterates that detailed commentary on each and every piece of evidence taken into consideration is not required.¹⁵⁶⁸ The burden is on the appellant to show that the Trial Chamber made a discernible error; that burden has not been discharged. In the absence of such a showing, the Appeals Chamber will not intervene.

     (b) Professional status

678. It is also evident from the Trial Judgement that the Trial Chamber took Kvocka’s professional status into consideration in determining his sentence. The Trial Chamber notes that Kvocka was described as “a competent, professional policeman” and states that “(h(is experience and integrity can be viewed as both mitigating and aggravating factors”.¹⁵⁶⁹ The Trial Chamber, noting that Kvocka apparently did a fine job of maintaining law and order prior to working in the camp, evidently considered his previous integrity a mitigating circumstance, which it was entitled to do.¹⁵⁷⁰ The Trial Chamber, however, was also correct in considering this experience an aggravating factor, once Kvocka held a position of authority.¹⁵⁷¹ Thus, the defendant has not shown any discernible error on the part of the Trial Chamber.

     (c) Dismissal from the camp

679. Turning to Kvocka’s dismissal from the camp, Kvocka alleges that the reason for his dismissal was his removing his two brothers-in-law from the camp, which, he argues, also subsequently gave rise to feelings of treachery.¹⁵⁷² The Prosecution submits that this is not a mitigating factor. Indeed, it does not consider it to be of any relevance for sentencing purposes.¹⁵⁷³ In the view of the Appeals Chamber, the event underlying all of Kvocka’s arguments is the assistance he rendered to his brothers-in-law. It is apparent that the Trial Judgement took this assistance into account, noting as it did that on a “few occasions he assisted detainees and attempted to prevent crimes”, but that “the vast majority of these instances involved relatives or friends.”¹⁵⁷⁴ No discernible error on the part of the Trial Chamber has thus been shown.
     3. Comparison with other sentences

680. Kvocka submits that a comparison with other sentences imposed by the Tribunal leads to the conclusion that his sentence should be significantly reduced.¹⁵⁷⁵ In particular, mention is made of the Celebici case, the Aleksovski case, and the Krnojelac case,¹⁵⁷⁶ and the length of time these individuals spent at the camps, the specific counts on which they were convicted and the corresponding sentences imposed on them.

681. Sentences of like individuals in like cases should be comparable and, in this regard, the Appeals Chamber “does not discount the assistance that may be drawn from previous decisions rendered”.¹⁵⁷⁷ Indeed, the Appeals Chamber has observed that a sentence may be considered “capricious or excessive if it is out of reasonable proportion with a line of sentences passed in similar circumstances for the same offences”.¹⁵⁷⁸ The underlying question is whether the particular offences, the circumstances in which they were committed, and the individuals concerned can truly be considered “like”. Any given case contains a multitude of variables, ranging from the number and type of crimes committed to the personal circumstances of the individual. Often, too many variables exist to be able to transpose the sentence in one case mutatis mutandis to another. Hence the Appeals Chamber has previously stated that:

     While it does not disagree with a contention that it is to be expected that two accused convicted of similar crimes in similar circumstances should not in practice receive very different sentences, often the differences are more significant that the similarities, and the mitigating and aggravating factors dictate different results.¹⁵⁷⁹

     Thus, while comparison with other sentences may be of assistance, such assistance is often limited.¹⁵⁸⁰ For these reasons, previous sentences imposed by the Tribunal and the ICTR are but one factor to be taken into account when determining the sentence.¹⁵⁸¹

682. Kvocka is under the impression that there are only two variables to be taken into account when determining the length of the sentence in so-called camp cases, namely, the length of time spent at the camp and the specific counts on which the individual was convicted. Kvocka is mistaken. While these are certainly two important factors to be considered in the determination of the sentence, a host of others also needs to be taken into account. Indeed, the very cases he cites emphasize the principle that the task of the Trial Chamber is to individualise the sentence so as to appropriately reflect the particular facts of the case and the circumstances of the individual perpetrator.¹⁵⁸² It is the view of the Appeals Chamber that the cases Kvocka cites as similar to his own differ in significant ways such that the sentences handed down in those cases do not prove instructive. For example, in the Aleksovski case, in sentencing the accused to seven years’ imprisonment, the Appeals Chamber stated that, had it not been for an element of double jeopardy in his case, and his being detained for a second time after a period of release, his sentence “would have been considerably longer”.¹⁵⁸³ An element of double jeopardy was also present with respect to Mucic in the Celebici case. Taking this into account, the Appeals Chamber recommended a sentence of ten years’ imprisonment, suggesting that, in its absence, the sentence would have been longer.¹⁵⁸⁴ The Trial Chamber subsequently sentenced Mucic to nine years.¹⁵⁸⁵ Further, with respect to the case of Krnojelac, the Appeals Chamber notes that, subsequent to the filing of briefs in the present case, Krnojelac’s sentence was revised to fifteen years on appeal.¹⁵⁸⁶

683. Since no discernible error on the part of the Trial Chamber has been detected, this ground of appeal must fail.
     4. Implications of the findings of the Appeals Chamber

684. The Appeals Chamber has allowed in part some of Kvocka’s grounds of appeal. However, the Appeal was not accepted in relation to counts in their entirety, but rather limited to certain incidents only. The overall picture of criminal conduct has not changed so substantially that an intervention of the Appeals Chamber is justified or warranted, in particular in the light of the gravity of the offences and Kvocka’s important role in supporting and furthering the joint criminal enterprise .
     C. Radic Appeal against Sentence

685. Radic received a sentence of imprisonment of twenty years. He appeals this sentence, and, in so doing, sets out five principal lines of argument. First, he argues that there is insufficient reasoning to justify his sentence. Second, he alleges factual inaccuracies on the part of the Trial Chamber. Third, he submits that the Trial Chamber erroneously considered certain factors as aggravating when determining the length of his sentence. Fourth, he contends that insufficient weight was afforded to certain mitigating factors. Finally, he considers that, comparing his sentence to previous sentences imposed by the Tribunal, his sentence should be reduced.
     1. Insufficient reasoning on the part of the Trial Chamber

686. Radic argues that the Trial Chamber did not adequately explain the reasons for his being sentenced to a term of twenty years in prison.¹⁵⁸⁷ The Prosecution responds that the Trial Chamber gave a well-reasoned basis for Radic’s sentence, that Radic has not shown that the Trial Chamber applied incorrect criteria, and that Radic failed to identify any discernible error on the part of the Trial Chamber.¹⁵⁸⁸

687. The Appeals Chamber observes that Radic simply asserts that the Trial Chamber failed to provide sufficient reasoning for his sentence. Save for the particular arguments raised by Radic which are considered below, this global ground of appeal will not be considered for lack of serious argument.
     2. Factual inaccuracies

688. Radic contends that there was no evidence upon which the Trial Chamber could conclude that he regarded the abuses as entertainment.¹⁵⁸⁹ He further contends that, if he committed sexual crimes “for his own pathetic gain”, as found to be the case by the Trial Chamber,¹⁵⁹⁰ this was not a reason for holding him liable.¹⁵⁹¹ To these contentions, the Prosecution counters that it was reasonable for the Trial Chamber to reach such a conclusion,¹⁵⁹² and that Radic’s argument confuses motive with intent.¹⁵⁹³

689. The Appeals Chamber considers that the arguments raised relate to Radic’s conviction and not his sentence. Nevertheless, since the matter impacts upon sentencing, it notes in passing that it was open to the Trial Chamber, on the basis of the evidence it heard, to draw the inference that Radic “relished” the criminal activity and regarded the abuses as “entertainment”.¹⁵⁹⁴ The former inference may be drawn from the circumstances surrounding Radic’s personal involvement in various crimes involving sexual violence as described in paragraphs 546-561 of the Trial Judgement. The latter may be inferred from the instances in which Radic was said to have laughed at, or otherwise enjoyed, abuses that were being committed.¹⁵⁹⁵ The Appeals Chamber further notes that the jurisprudence of the Tribunal is clear that “crimes against humanity can be committed for purely personal reasons”.¹⁵⁹⁶
     3. Erroneous consideration of aggravating factors

690. Radic questions the reasoning behind the inclusion of certain facts within the sentencing section of the Trial Judgement. He argues that, if it is true that the Trial Chamber regarded them as crucial only for the verdict and not as aggravating factors in the determination of his sentence, then the reason for their being placed within the portion of the judgement devoted to sentencing is unclear.¹⁵⁹⁷ The Prosecution considers Radic to be raising an argument of “double-punishment” and submits that he “misunderstands the import of these facts”.¹⁵⁹⁸ It argues that the Trial Chamber did not punish Radic twice but merely took his role into account when determining the gravity of his crimes.¹⁵⁹⁹

691. The Appeals Chamber considers Radic to be misreading the relevant paragraphs. Paragraph 707 of the Trial Judgement commences:

     The Trial Chamber takes account of the fact that most of the crimes were committed within the context of participating in a joint criminal enterprise. Several aspects of this case were critical to our decision that the five defendants did participate significantly and unlawfully in a persecutory system against non-Serb detainees, and these aspects deserve recalling, even though they will not be considered as aggravating circumstances.¹⁶⁰⁰

     The Trial Chamber explicitly states that the circumstances recalled will not be treated as aggravating factors. As such, the question of “double-punishment” does not arise. The Trial Chamber is doing no more than applying the sentencing principles it earlier identified to the shared characteristics of the defendants before considering each of them individually.

     4. Insufficient weight afforded to mitigating factors

692. Radic contends that the Trial Chamber gave inadequate weight to the assistance he rendered to “a large number of people”.¹⁶⁰¹ In response, the Prosecution argues that the Trial Chamber did consider these acts as mitigating factors, but also found that they were limited to people from his village and that they were sometimes made conditional on sexual favours.¹⁶⁰² Radic argues that the significance of his acts should not be diminished by reason of the fact that a great number of the people he assisted came from the place in which he worked.¹⁶⁰³

693. The Appeals Chamber reiterates that, while a Trial Chamber is obliged to take account of mitigating circumstances when determining the sentence, the weight to be afforded to those circumstances is a matter within its discretion.¹⁶⁰⁴ The Trial Chamber noted the “few occasions” on which Radic “assisted detainees and attempted to prevent crimes”, but also noted that “the vast majority of these instances involved detainees from the town where he had worked as a policeman for 20 years”.¹⁶⁰⁵ It is thus clear that the Trial Chamber took this mitigating factor into consideration when determining the length of Radic’s sentence. In so considering, the Trial Chamber was entitled to afford as much, or as little, weight to this mitigating factor as it deemed appropriate. This is particularly so given its latter finding. As has been noted previously, selective assistance is “less decisive when one notes that criminals frequently show compassion for some of their victims even when perpetrating the most heinous of crimes”.¹⁶⁰⁶ It is less decisive still when those victims are assisted because they are known to the accused or they share similar characteristics with the accused. This suggests that they are being helped, not because they are innocent victims, but because the accused considers them to be “like” himself. The thrust of Radic’s argument is that he helped many detainees as opposed to just a few as found by the Trial Chamber. He does not offer any evidence in support of his argument and fails to identify any instance in which the Trial Chamber ignored the help he offered to a detainee. In the absence of such supporting facts, Radic’s argument is without substance.
     5. Comparison of sentences

694. Radic contends that his sentence is disproportionate to others imposed by the Tribunal in cases he considers to be similar to his. He argues that the Trial Chamber found him to be a guard shift leader engaged in a joint criminal enterprise and that such a determination should lead to a sentence of five to seven years.¹⁶⁰⁷ He further argues that the difference between his sentence and those of his co-defendants is excessive.¹⁶⁰⁸ To this, the Prosecution responds that the Trial Chamber was not under an obligation to compare sentences in other cases and, in any event, numerous differences exist between the case of Radic and others he cites.¹⁶⁰⁹

695. The particular cases Radic cites are the Celebici case in which he notes that Delic and Landzo were sentenced to 20 and 15 years respectively for murders,¹⁶¹⁰ the Furundzija case where he observes the accused was sentenced to eight years for a violation of the laws or customs of war,¹⁶¹¹ the Aleksovski case, in which he states that the Trial Chamber pronounced seven years for command responsibility,¹⁶¹² and the Erdemovic case, in which he contends that a sentence of five years was meted out for the murder of between 70 and 100 people.¹⁶¹³ In addition, Radic compares the sentences imposed in the Tadic case,¹⁶¹⁴ the Todorovic case,¹⁶¹⁵ the Krnojelac case,¹⁶¹⁶ and the Sikirica case.¹⁶¹⁷ To further buttress his argument, Radic refers to the sentences of his co-accused. He compares his sentence to that of Kos who was sentenced to six years’ imprisonment, Kvocka who was sentenced to seven years and Prcac who was sentenced to five years.¹⁶¹⁸

696. As was stated in the case of Kvocka, any given case contains a multitude of variables.¹⁶¹⁹ However, instead of considering the host of variables at play in each of the cases he cites, Radic concentrates only on those variables that are similar to his case. In doing so, he neglects the numerous variables that differ. To focus on one or two variables that are similar to the exclusion of numerous others that differ will not suffice to make the cases or the sentences analogous. The Appeals Chamber does not propose to provide a detailed analysis of the similarities and differences between Radic’s case and each of the other cases he mentions. As illustrations, it is enough to note that the mitigating circumstance of duress makes the case of Erdemovic easily distinguishable,¹⁶²⁰ and that in the Todorovic and Sikirica cases, all individuals concerned pleaded guilty to one count of crimes against humanity.¹⁶²¹ The significant differences between the cases Radic cites and his own sufficiently distinguish each of them and therefore their sentences.

697. The same reasoning applies to a comparison with the sentences imposed on Radic’s co-defendants. Although he argues that the difference of thirteen and fourteen years between his own sentence and those of Kvocka and Kos respectively due to his role in rape and sexual violence is excessive,¹⁶²² other significant differences exist. One of the most significant is the fact that Kvocka, Kos and Prcac were not convicted of personally committing any of the crimes themselves. Radic, however, was convicted of personally “committing rape and other forms of sexual violence against several women detained in the camp”.¹⁶²³ Furthermore, the Trial Chamber observed:

     By contrast to his colleagues Kvocka and Prcac, professional policemen like him who were asked to serve in the camp and who ignored and tolerated the crimes, by all indications Radic relished and actively encouraged criminal activity in the camp. He appeared to regard the abuses as entertainment.¹⁶²⁴

     The jurisprudence of this Tribunal and that of the ICTR is clear that “the informed, willing or enthusiastic participation in crime” as well as “the sexual, violent, and humiliating nature of the acts” may be considered aggravating factors.¹⁶²⁵ As such, the cases of Kvocka, Kos and Prcac cannot be treated as alike for the purposes of sentencing.

698. Given that the Trial Chamber did not err in its determination of Radic’s sentence, this ground of appeal is dismissed.
     6. Implications of the findings of the Appeals Chamber

699. Given the fact that the Appeals Chamber did not allow any of Radic’s grounds of appeal, his sentence is affirmed.
     D. Zigic Appeal against Sentence

700. Zigic argues that the Trial Chamber erred in sentencing him to 25 years’ imprisonment. He challenges a number of the Trial Chamber’s factual holdings and argues that it failed to take a number of mitigating circumstances into account.
     1. Factual inaccuracies

701. Zigic challenges the basis on which he is described in the Trial Judgement as “a petty criminal”. He argues that such a description is groundless.¹⁶²⁶ The Appeals Chamber observes that the reference to Zigic’s prior record was introduced simply by way of background. It was in no way considered an aggravating factor in sentencing. This is evident from a comparison of the relevant passage with the corresponding passages for each of the other defendants as well as the subsequent reasoning of the Trial Chamber with regard to the existence of and weight to be given to any aggravating factors in Zigic’s case.¹⁶²⁷

702. Further, Zigic submits that he never used his weapon, showing that he did not possess the direct intent to kill anyone. He thus claims his mens rea was not established.¹⁶²⁸ In the view of the Prosecution, this is a challenge to Zigic’s conviction rather than his sentence .¹⁶²⁹ The Appeals Chamber finds the argument of Zigic to be without merit both as a matter of fact and as a matter of law. As a matter of fact, the Trial Chamber found that, at least on one occasion, Zigic used his gun to beat a detainee, wounding him critically when the gun went off.¹⁶³⁰ As a matter of law, Zigic confuses intent to commit with means of commission. The Trial Chamber found that, even when Zigic did not use his gun, he had the necessary mens rea for murder in a number of cases. No discernible error in the reasoning of the Trial Chamber has been identified.
     2. Failure to consider certain mitigating factors

     (a) Role in the commission of crimes

703. Zigic argues that since he was not the sole perpetrator in any of the crimes, save for the beating of Hasan Karabasic, this should be treated as a mitigating factor.¹⁶³¹ In the view of the Appeals Chamber, however, the commission of a crime together with other persons in most cases will not be considered less serious than the commission of a crime on one’s own. This does not necessarily mean that participation in a multi-perpetrator offence is an aggravating circumstance, but it can in no way be considered a mitigating factor.

     (b) Medical condition and intoxication

704. Zigic also submits that the injury to, and amputation of, his forefinger should be considered a mitigating circumstance. He argues that an expert-witness described it as a “serious injury” and that, as a result of a complication, his life was in danger and he was hospitalized for a period of six days.¹⁶³² Zigic asserts that the injury was at its peak during the time-period covered by the Indictment.¹⁶³³ He contends that his resulting physical and mental states “directly influenced” the commission of the crimes and were the source of his criminal motives.¹⁶³⁴ It was allegedly the pain resulting from his injury, together with his previous addiction, that also caused him to consume extreme amounts of alcohol.¹⁶³⁵

705. In response, the Prosecution submits that the Trial Chamber heard overwhelming evidence that Zigic severely beat, tortured, and killed detainees even after his injury, and that he has not shown a discernible error on the part of the Trial Chamber .¹⁶³⁶ With respect to the intoxication argument, the Prosecution recalls the finding of the Trial Chamber that Zigic did not plead intoxication with sufficient specificity,¹⁶³⁷ and submits that he has not discharged his burden of proving intoxication as a mitigating circumstance.¹⁶³⁸

706. It is the opinion of the Appeals Chamber that the Trial Chamber did not err in its consideration of this matter. The Trial Chamber expressly noted Zigic’s submissions on this ground,¹⁶³⁹ prima facie proof they were therefore taken into account in determining his sentence.¹⁶⁴⁰ Zigic has not shown the Appeals Chamber anything that would lead it to disturb this presumption. For example, there is no evidence to support the proposition that any pain resulting from Zigic’s injury led to an impairment of his mental state. Further, according to Zigic, the initial injury and amputation occurred on 29 May 1992 and “re-amputation” on 21 June 1992.¹⁶⁴¹ Yet Zigic has been convicted of offences taking place as late as 5-6 August 1992.¹⁶⁴² Thus, the injury to his finger would not seem to bear any relation to his activities in the camps.

707. The Appeals Chamber now turns to Zigic’s submission that his extreme consumption of alcohol should be considered a mitigating circumstance. The jurisprudence of this Tribunal is clear that voluntary intoxication is not a mitigating factor.¹⁶⁴³ In this regard, the Trial Chamber correctly stated:

     [W]hen mental capacity is diminished due to use of alcohol or drugs, account must be taken of whether the person subjected himself voluntarily or consciously to such a diminished mental state. While a state of intoxication could constitute a mitigating circumstance if it is forced or coerced, the Trial Chamber cannot accept Zigic’s contention that an intentionally procured diminished mental state could result in a mitigated sentence.¹⁶⁴⁴

708. On appeal, the argument of Zigic seems to be that his intoxication was in fact involuntary. He claims that the pain resulting from his injury coupled with his previous addiction “caused” his “extreme consumption of alcohol”.¹⁶⁴⁵ The Appeals Chamber notes that Zigic did not plead involuntary intoxication at trial. In any event, as a potential mitigating circumstance, it is incumbent upon the defendant to prove, on the balance of probabilities, that the consumption of alcohol was indeed involuntary. Zigic did not specify the particular incidents at which he had been under the influence of alcohol either at trial¹⁶⁴⁶ or in his Appeal Brief. He argues neither that he was permanently under the influence of alcohol, nor that his mental powers were impaired by its chronic abuse. Further, the Appeals Chamber notes that he has not presented any evidence to show that his intoxication was in fact involuntary. Zigic has not, therefore, succeeded in discharging his burden.

     (c) Voluntary surrender

709. Zigic contends that his surrender to the Tribunal while in prison in Banja Luka should be considered a mitigating factor. He argues that the authorities of the Republika Srpska would not have extradited him to the Tribunal and that the indictment against him might have been withdrawn.¹⁶⁴⁷ The Prosecution considers such arguments to be mere speculation on the part of Zigic and thus holds that they cannot form the basis of any appeal.¹⁶⁴⁸

710. Voluntary surrender may constitute a mitigating circumstance.¹⁶⁴⁹ However, the Trial Chamber did not consider Zigic’s surrender to be a mitigating circumstance “[d]ue to the fact that Zigic was imprisoned in Banja Luka at the time he surrendered to the Tribunal”.¹⁶⁵⁰ The issue that is raised on these facts is whether, in light of Zigic’s incarcerated state, his surrender really can be described as voluntary.

711. The Appeals Chamber considers Zigic’s argument that the indictment against him might have been withdrawn to be purely speculative. As a potential mitigating factor, it is incumbent upon the defendant to establish on the balance of probabilities that such an act would have happened. The defendant has not satisfied this burden.

712. Nevertheless, the Appeals Chamber notes that the issue of the withdrawal of the indictment by the Tribunal is distinct from the argument that the authorities of Republika Srpska would not have extradited Zigic to the Tribunal. The lack of cooperation between the authorities of Republika Srpska and the Tribunal during the period under consideration is well known.¹⁶⁵¹ In Simic, the Trial Chamber recognized that:

     Milan Simic’s surrender may have had an impact on the manner in which the Tribunal was viewed by officials and ordinary citizens in the Republika Srpska, at a time when relations between the Tribunal and the Republika Srpska were beginning to move from non-cooperation to limited co-operation.¹⁶⁵²

     The Appeals Chamber notes that Zigic’s surrender to the Tribunal took place just some two months later than Milan Simic’s surrender.¹⁶⁵³ Further, although the authorities of Republika Srpska might have co-operated in the transfer of Zigic from Banja Luka to the Tribunal, there is a vast difference between facilitating the transfer of detained individuals to the Tribunal and initiating the transfer of indictees who were never detained locally. The Appeals Chamber thus considers that Zigic has satisfied his burden.

713. For these reasons, the Appeals Chamber finds that the Trial Chamber committed an error when it declined to consider Zigic’s voluntary surrender to the Tribunal a mitigating factor. However, given the fact that Zigic was in prison at the time of his surrender,¹⁶⁵⁴ the Appeals Chamber does not consider that significant weight should be given to this mitigating circumstance.

     (d) Remorse

714. Zigic states that he confessed to certain crimes and “publicly expressed [his] regret and apology” to the victims of those crimes.¹⁶⁵⁵ He asserts that the Trial Chamber failed to take this “significant” mitigating factor into account when determining the length of his sentence.¹⁶⁵⁶ The Prosecution counters that Zigic’s confession was “overwhelmingly contradicted ” by testimony from victims and witnesses and that his expression of remorse was “significantly limited”.¹⁶⁵⁷ It further responds that Zigic has not shown that the Trial Chamber made a discernible error by failing to consider his confession a mitigating circumstance.¹⁶⁵⁸ In his reply, Zigic submits that by giving little weight to his confession, the message being sent out is that no one should confess since a confession only facilitates conviction.¹⁶⁵⁹

715. The Appeals Chamber observes that acts or expressions evidencing real and sincere remorse may be treated as a mitigating circumstance.¹⁶⁶⁰ It also notes that the Trial Chamber did not mention remorse as a mitigating circumstance it took into account when deciding upon the sentence. However, the Trial Chamber has discretion as regards the factors it considers in mitigation,¹⁶⁶¹ the weight it attaches to a particular mitigating factor,¹⁶⁶² and the discounting of a particular mitigating factor.¹⁶⁶³ A discernible error on the part of the Trial Chamber has to be demonstrated in order for the Appeals Chamber to intervene. The Appeals Chamber notes the limited and qualified nature of Zigic’s remorse. Zigic confessed that he kicked Sead Jusufagic once,¹⁶⁶⁴ and that he hit Witness AK once for which he expressed some remorse.¹⁶⁶⁵ This expression of remorse covers only a fraction of the crimes for which Zigic has been convicted. As such, the Appeals Chamber considers that it was within the Trial Chamber’s discretion not to consider Zigic’s remorse as a mitigating circumstance.
     3. Implications of the findings of the Appeals Chamber

716. The Appeals Chamber has overturned Zigic’s conviction for the crimes committed in the Omarska camp in general, and has found that the Trial Chamber erred in not considering Zigic’s voluntary surrender as a mitigating circumstance. However, the Appeals Chamber recalls that the latter factor should be given little weight, because Zigic was actually in prison in the Republika Srpska at the time of his surrender.¹⁶⁶⁶ With regard to the reversed conviction for the crimes committed in the Omarska camp generally, the Appeals Chamber notes that no conviction for crimes against individual victims under the relevant counts has been reversed. It appears to the Appeals Chamber that the Trial Chamber gave only little weight to Zigic’s conviction for crimes committed in the Omarska camp generally. In particular, the Trial Chamber did not refer to any particular incident supporting this conviction; rather, it stressed the crimes physically committed by Zigic.¹⁶⁶⁷ The Appeals Chamber notes that Zigic, of all the Appellants, was the one who physically committed the highest number of crimes. The Appeals Chamber further notes that Zigic, apart from a minor function in the Keraterm camp, held no official function in the camps, but entered the camps for the sole purpose of abusing detainees.¹⁶⁶⁸ The Appeals Chamber especially wishes to emphasize the seriousness and gravity of the crimes committed by Zigic, and thus affirms the sentence imposed by the Trial Chamber.
     E. Prcac Appeal against Sentence

717. Prcac was sentenced to five years in prison by the Trial Chamber. In appealing this sentence, Prcac challenges certain factual holdings of the Trial Chamber and argues that it failed to take a number of mitigating circumstances into account when determining his sentence. He asserts that, as a result, the sentence imposed by the Trial Chamber was too severe.¹⁶⁶⁹
     1. Factual challenges

718. Prcac submits that there is no proof that he held the post of administrative assistant to the camp commander and that there is no evidence to show he was responsible for participation in a joint criminal enterprise. The Appeals Chamber considers that the issue raised is one relating to conviction and not sentence. As such, it refers to its earlier discussion of the matter.¹⁶⁷⁰
     2. Failure to consider certain mitigating factors

     (a) Personal circumstances

719. Prcac contends that, in determining his sentence, the Trial Chamber did not take into account his personal circumstances, namely, his age, health problems, family circumstances, past history and assistance to “many detainees” in the Omarska camp.¹⁶⁷¹ For its part, the Prosecution submits that the Trial Chamber did consider the personal circumstances of the accused and that Prcac has not shown a discernible error on the part of the Trial Chamber.¹⁶⁷²

720. The Appeals Chamber observes that the Trial Judgement expressly refers to the assistance provided by Prcac. Paragraph 723 of the Trial Judgement states, “On a few occasions he assisted detainees and attempted to prevent crimes, but the vast majority of these instances involved former colleagues or friends.” The Trial Judgement also refers to the personal circumstances of the defendant, paragraph 724 taking note of the fact that “Prcac is the oldest of the defendants, he is in ill health, and he has two disabled children.”¹⁶⁷³ It is therefore clear that the Trial Chamber took into account the personal circumstances raised by Prcac on appeal.

     (b) Co-operation

721. Prcac further argues that his co-operation with the Prosecution and the Tribunal was not properly taken into account by the Trial Chamber. In particular, he mentions the renunciation of his right to be present at his hearings when he was ill so as not to postpone his trial, his interview with the Prosecution before it had disclosed all its evidence, his early submission of evidence, his truthfulness with the Tribunal and his inability to testify not by choice but “for reasons of health”.¹⁶⁷⁴ The response of the Prosecution is to challenge all of Prcac’s arguments. It submits that the issue of the renunciation of the right to be present during all trial proceedings was not raised as a mitigating factor at trial and therefore cannot be raised on appeal,¹⁶⁷⁵ that the Trial Chamber did take Prcac’s voluntary interview into consideration,¹⁶⁷⁶ and that simply meeting one’s disclosure obligations earlier than required should not be considered in mitigation.¹⁶⁷⁷ The Prosecution also submits that Prcac is asking the Appeals Chamber to speculate that it was his health that prevented him from testifying at trial and that, in any event, being so prevented from testifying in one’s own defence does not amount to substantial co-operation.¹⁶⁷⁸

722. Rule 101(B) of the Rules provides that in determining the sentence, the Trial Chamber shall take into account inter alia “any mitigating circumstances including the substantial cooperation with the Prosecutor by the convicted person before or after conviction”.¹⁶⁷⁹ It is for the Trial Chamber to assess whether the co-operation of the defendant is substantial,¹⁶⁸⁰ and the conclusion of the Trial Chamber will only be disturbed if it made a discernible error thereby stepping outside the bounds of its discretion.

723. The Appeals Chamber observes that the Trial Judgement explicitly took “note of the fact that Prcac voluntarily gave a statement to the Prosecution”.¹⁶⁸¹ It further referred to Prcac’s submission on co-operation,¹⁶⁸² thus constituting “prima facie evidence that [it was] taken into account”.¹⁶⁸³ No reasoned arguments have been adduced in support of the proposition that insufficient weight was attached to these considerations. Further, it is clear that the Trial Chamber could not have erred in failing to consider the factors being raised by Prcac here for the first time. Since Prcac has not shown the Appeals Chamber any reason to displace the findings of the Trial Chamber, this argument must be rejected.

724. For these reasons, it has been found that the Trial Chamber did not err in sentencing Prcac to five years’ imprisonment. As a result, this ground of appeal must be dismissed.
     3. Implications of the findings of the Appeals Chamber

725. Given the fact that the Appeals Chamber did not allow any of Prcac’s grounds of appeal, his sentence is affirmed.
     VIII. DISPOSITION

     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 23 – 26 March 2004 and 21 July 2004;

     SITTING in open session;

     UNANIMOUSLY

     WITH RESPECT TO KVOCKA’S GROUNDS OF APPEAL:

     NOTES that Kvocka’s first ground of appeal has been withdrawn;

     ALLOWS, in part, Kvocka’s fourth ground of appeal in so far as it relates to his conviction as a co-perpetrator of persecution for rape and sexual assault under count 1 of the Indictment, REVERSES his conviction pursuant to Article 7(1) of the Statute under count 1 (persecution, a crime against humanity) in so far as this conviction relates to rape and sexual assault, AND AFFIRMS his remaining conviction pursuant to Article 7(1) of the Statute under count 1;

     ALLOWS, in part, Kvocka’s fifth ground of appeal in so far as it relates to the murder of Ahil Dedic and Ismet HodZic, REVERSES his conviction pursuant to Article 7(1) of the Statute under count 5 (murder as a violation of the laws or customs of war) in so far as this conviction relates to the murder of Ahil Dedic and Ismet HodZic, AND AFFIRMS his conviction pursuant to Article 7(1) of the Statute under count 5 for the murder of Mehmedalija Nasic and Becir Medunjanin ;

     DISMISSES Kvocka’s remaining grounds of appeal against convictions in all other respects;

     DISMISSES Kvocka’s appeal against sentence and AFFIRMS the sentence of seven years of imprisonment as imposed by the Trial Chamber;

     WITH RESPECT TO RADIC’S GROUNDS OF APPEAL:

     DISMISSES all of Radic’s grounds of appeal and AFFIRMS the sentence of twenty years of imprisonment as imposed by the Trial Chamber;

     WITH RESPECT TO ZIGIC’S GROUNDS OF APPEAL:

     ALLOWS Zigic’s grounds of appeal concerning his responsibility for crimes committed in the Omarska camp generally, REVERSES his conviction pursuant to Article 7(1) of the Statute under count 1 (persecution as a crime against humanity ) in so far as this conviction relates to the crimes committed in the Omarska camp generally, REVERSES his conviction pursuant to Article 7(1) of the Statute under count 7 (murder as a violation of the laws or customs of war) in so far as this conviction relates to the crimes committed in the Omarska camp generally, REVERSES his conviction pursuant to Article 7(1) of the Statute under count 12 torture as a violation of the laws or customs of war) in so far as this conviction relates to the crimes committed in the Omarska camp generally, and AFFIRMS his conviction pursuant to Article 7(1) of the Statute under count 1 in so far as his conviction relates to the crimes committed against Becir Medunjanin, Asef Kapetanovic, Witnesses AK, AJ, T, Abdulah Brkic, Emir Beganovic, Fajzo Mujkanovic, Witness AE, RedZep Grabic, Jasmin Ramadonovic, Witness V, Edin Ganic, Emsud Bahonjic, Drago Tokmadzic and Sead Jusufagic, AFFIRMS his conviction pursuant to Article 7(1) of the Statute under count 7 in so far as his conviction relates to the crimes committed against Becir Medunjanin, Drago Tokmadzic, Sead Jusufagic and Emsud Bahonjic and AFFIRMS his conviction pursuant to Article 7(1) of the Statute under count 12 in so far as his conviction relates to the crimes committed against Abdulah Brkic, Witnesses T, AK, AJ, Asef Kapetanovic, Fajzo Mujkanovic, Witness AE, RedZep Grabic and Jasmin Ramadanovic;

     DISMISSES Zigic’s remaining grounds of appeal against convictions in all other respects;

     DISMISSES Zigic’s appeal against sentence and AFFIRMS the sentence of 25 years of imprisonment as imposed by the Trial Chamber;

     WITH RESPECT TO PRCAC’S GROUNDS OF APPEAL:

     DISMISSES all of Prcac’s grounds of appeal and AFFIRMS the sentence of five years of imprisonment as imposed by the Trial Chamber;

     and finally,

     RULES that this Judgement shall be enforced immediately pursuant to Rule 118 of the Rules;

     ORDERS, in accordance with Rule 103(C) and Rule 107 of the Rules, that the Appellants are to remain in the custody of the International Tribunal pending the finalisation of arrangements for their transfer to the State where their sentences will be served.

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

__________________
Mohamed Shahabuddeen
Presiding

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Fausto Pocar

__________________
Florence Ndepele Mwachande Mumba

__________________
Mehmet Güney

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Inés Mónica Weinberg de Roca

Judge Mohamed Shahabuddeen and Judge Inés Mónica Weinberg de Roca append separate opinions to this Judgement.

Dated this twenty-eighth day of February 2005,
At The Hague,
The Netherlands

[Seal of the International Tribunal]