Case No.: IT-97-24-A

Before:
Judge Fausto Pocar, Presiding
Judge Mohamed Shahabuddeen
Judge Mehmet Güney
Judge Andrésia Vaz
Judge Theodor Meron

Registrar:
Mr. Hans Holthuis

Judgement of:
22 March 2006

The Office of the Prosecutor:

Mr. Mark J. McKeon
Ms. Helen Brady
Mr. Xavier Tracol
Ms. Barbara Goy
Ms. Katharina Margetts

Counsel for the Appellant:

Mr. Branko Lukic
Mr. John Ostojic

I. INTRODUCTION
1. The Appeals Chamber of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia since 1991 (“Tribunal”) is seised of two appeals¹ from the written Judgement rendered by Trial Chamber II on 31 July 2003 in the case of Prosecutor v. Milomir Stakic, Case No. IT-97-24-T (“Trial Judgement”).

2. Milomir Stakic (“Appellant”) was born on 19 January 1962 in the Municipality of Prijedor, located in what is now the Republika Srpska region of Bosnia and Herzegovina.² He began his career as a physician, but became actively involved in politics during the run-up to the 1990 multi-party elections in Bosnia and Herzegovina.³ In November 1990, as a member of the Serbian Democratic Party (“SDS”), he was elected to the Prijedor Municipal Assembly, becoming Vice-President of that body in January 1991.⁴ In September 1991, he was elected Vice-President of the SDS Municipal Board, and in January 1992, he was elected President of the self-proclaimed Assembly of the Serbian People of the Municipality of Prijedor.⁵

3. On 29 and 30 April 1992, the SDS staged what the Trial Chamber termed a coup d’état in Prijedor, hereafter referred to as the “take-over”.⁶ During the turbulent months that followed, the Appellant became acting President of the Municipal Assembly, President of the Prijedor Municipal Crisis Staff (later renamed the “War Presidency”), which was established in May 1992 and effectively assumed all the duties of the Municipal Assembly on the grounds that the region was in a state of emergency.⁷ He served in those positions until January 1993, when he was removed from his position as President of the Municipal Assembly and went back to full-time practice as a physician.⁸

4. In an indictment filed on 27 March 2001, the Appellant was charged with complicity in genocide while he was President of the Municipality of Prijedor Crisis Staff.⁹ The Indictment was subsequently amended, and the Appellant ultimately went to trial facing charges of genocide, complicity in genocide, extermination, murder as a crime against humanity, murder as a violation of the laws and customs of war, persecutions, deportation, and other inhumane acts (forcible transfer).¹⁰

5. The Trial Judgement was issued on 31 July 2003. The Trial Chamber found the Appellant not guilty of the crime of genocide (Count 1), complicity in genocide (Count 2) and other inhumane acts (forcible transfer) as a crime against humanity (Count 8).¹¹ The Trial Chamber found the Appellant guilty of extermination as a crime against humanity (Count 4); murder as a violation of the laws and customs of war (Count 5); and persecutions as a crime against humanity (Count 6), incorporating the crimes of murder as a crime against humanity (Count 3) and deportation as a crime against humanity (Count 7).¹² The Appellant was sentenced to life imprisonment.¹³ Both the Appellant¹⁴ and the Office of the Prosecutor (“Prosecution”)¹⁵ have appealed the decision.

6. The Appeals Chamber heard oral submissions regarding these appeals on 4, 5 and 6 October 2005. Having considered the written and oral submissions of the Appellant and the Prosecution, the Appeals Chamber hereby renders its Judgement.
   II. THE STANDARD FOR APPELLATE REVIEW

7. On appeal, the Parties must limit their arguments to legal errors that invalidate the decision of the Trial Chamber and to factual errors that result in a miscarriage of justice within the scope of Article 25 of the Statute. These criteria are well established by the Appeals Chambers of both the ICTY¹⁶ and the ICTR.¹⁷ In exceptional circumstances, the Appeals Chamber will also hear appeals where a party has raised a legal issue that would not lead to the invalidation of the judgement but is nevertheless of general significance to the Tribunal’s jurisprudence.¹⁸

8. Any party alleging an error of law must 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 changing the outcome of a decision may be rejected on that ground.¹⁹ Even if the party’s arguments are insufficient to support the contention of an error, however, the Appeals Chamber may conclude for other reasons that there is an error of law.²⁰

9. The Appeals Chamber reviews the Trial Chamber’s findings of law to determine whether or not they are correct.²¹ Where the Appeals Chamber finds an error of law in the Trial Judgement arising from the application of the wrong legal standard by the Trial Chamber, the Appeals Chamber will articulate the correct legal standard and review the relevant factual findings of the Trial Chamber accordingly.²² In so doing, the Appeals Chamber not only corrects the legal error, but applies the correct legal standard to the evidence contained in the trial record, where necessary, and determines whether it is itself convinced beyond reasonable doubt as to the factual finding challenged by the Defence before that finding is confirmed on appeal.²³ The Appeals Chamber will not review the entire trial record de novo; rather it “will in principle only take into account … evidence referred to by the Trial Chamber in the body of the Judgement or in a related footnote; evidence contained in the trial record and referred to by the parties; and additional evidence admitted on appeal.”²⁴

10. When considering alleged errors of fact on appeal from the Defence, the Appeals Chamber will determine whether no reasonable trier of fact could have reached the verdict of guilt beyond reasonable doubt.²⁵ In determining whether or not a Trial Chamber’s finding was reasonable, the Appeals Chamber “will not lightly disturb findings of fact by a Trial Chamber”.²⁶ The Appeals Chamber recalls, as a general principle, the approach adopted by the Appeals Chamber in Kupreskic, 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.²⁷

11. A party may not merely repeat on appeal arguments that did not succeed at trial, unless the party can demonstrate that the Trial Chamber’s rejection of them constituted such an error as to warrant the intervention of the Appeals Chamber.²⁸ Arguments of a party which do not have the potential to cause the impugned decision to be reversed or revised may be immediately dismissed by the Appeals Chamber and need not be considered on the merits.²⁹

12. In order for the Appeals Chamber to assess a party’s arguments on appeal, the appealing party is expected to provide precise references to relevant transcript pages or paragraphs in the Trial Judgement to which the challenges are being made.³⁰ Further, “the Appeals Chamber cannot be expected to consider a party’s submissions in detail if they are obscure, contradictory, vague or suffer from other formal and obvious insufficiencies.”³¹

13. It should be recalled that the Appeals Chamber has inherent discretion in selecting which submissions merit a detailed reasoned opinion in writing.³² Furthermore, the Appeals Chamber may dismiss arguments which are evidently unfounded without providing detailed reasoning.³³
    III. THE PROSECUTION’S THIRD GROUND OF APPEAL: THE GROUP(S) ALLEGEDLY TARGETED FOR GENOCIDE

14. The Trial Chamber acquitted the Appellant of genocide, concluding that the Prosecution had not introduced sufficient evidence to establish that “the Bosnian Croat group was … targeted”.³⁴ The Trial Chamber also found that while the Prosecution had proven “a comprehensive pattern of atrocities against [Bosnian] Muslims in Prijedor”,³⁵ the evidence did not show beyond a reasonable doubt that the Appellant sought to destroy the Muslim group in whole or in part.³⁶ In its third ground of appeal, the Prosecution argues that the Trial Chamber erred in law by separately considering whether the Appellant was guilty of genocide against Muslims and against Croats instead of defining the group allegedly targeted for genocide as “non-Serbs”. The Prosecution further argues in the alternative that the Trial Chamber erred in fact when it found that the Bosnian Croat group was not separately targeted by acts amounting to the actus reus for genocide.

15. In the first and second grounds of appeal, the Prosecution challenges the Trial Chamber’s conclusion that the Appellant lacked the requisite dolus specialis for genocide. Because the question of how to define the group allegedly targeted for genocide is logically antecedent to questions about the Appellant’s mens rea, the Appeals Chamber considers the Prosecution’s third ground of appeal first. The Appeals Chamber will then consider the Prosecution’s arguments regarding the Appellant’s mens rea.
    A. The Trial Chamber’s alleged error in defining the target group

16. The Prosecution argues that the Trial Chamber committed an error of law when, in the process of determining whether the Appellant committed genocide, it declined to define the target group as all the non-Serbs in Prijedor Municipality and instead required the Prosecution to establish genocide separately with respect to both Bosnian Croats and Bosnian Muslims.³⁷ Elaborating, the Prosecution submits that the Trial Chamber offered no legal basis for explicitly rejecting the “negative approach” adopted by the Jelisic Trial Chamber,³⁸ an approach which, according to the Prosecution, is more entrenched than any other in the jurisprudence of the Tribunal and the ICTR.³⁹ The Prosecution argues that the Jelisic approach finds support in the Krstic and Rutaganda Trial Judgements, pointing out that these Judgements contain language suggesting that target groups should be subjectively defined by the manner in which the alleged perpetrator perceived the group.⁴⁰ The Prosecution adds that the Final Report of the Commission of Experts established pursuant to Security Council Resolution 780 – a Commission that examined alleged crimes in the former Yugoslavia before the Tribunal was formed – suggested that it may be permissible to define target groups by reference to national, ethnical, racial, or religious characteristics that individuals lack.⁴¹ The Prosecution further submits that requiring it “to prove separate targeting of [Muslims and Croats] does not accord with the practical realities of conflicts of this nature or with the facts of this case”, and that such a requirement “is not supported by any authority”.⁴²

17. The Appellant responds that acceptance of the “negative approach” would expand the definition of genocide, thereby diluting the “significance” of the “primary historical examples of” that crime.⁴³ He adds that both UN General Assembly Resolution 96(I) (1946) – which called for the drafting of a Convention explicitly barring genocide – and the Preamble to the Convention on the Prosecution and Punishment of the Crime of Genocide explain that the crime of genocide entails “denial of the right to existence of entire human groups”.⁴⁴ The Appellant observes, moreover, that in Akayesu, a Trial Chamber of the ICTR referred to the Genocide Convention’s travaux préparatoires to conclude that, absent intent to destroy a protected group, no act can amount to genocide, no matter how atrocious that act is.⁴⁵ In any event, the Appellant argues, because he did not possess the specific intent necessary to commit genocide, the question of whether target groups may be negatively defined proves irrelevant in this case.⁴⁶

18. As a preliminary matter, the Appeals Chamber rejects the Appellant’s argument that it need not address whether target groups may be negatively defined. Because evidence of intent to destroy may be inferred from an accused’s actions or utterances vis-à-vis the targeted group, it is impossible to establish with certainty whether the Appellant possessed the necessary intent to destroy if the target group itself has not been defined.

19. The Trial Chamber held that “where more than one group is targeted [by discriminatory attacks allegedly amounting to genocide], it is not appropriate to define the group in general terms as, for example, ‘non-Serbs’.”⁴⁷ Rather, it held that the elements of genocide must be considered separately in relation to each specific group – in this case Bosnian Muslims and Bosnian Croats.⁴⁸ In so holding, the Trial Chamber departed without explanation from the “negative approach” taken by the Trial Judgement in Jelisic, an approach which consists of “identifying individuals as not being part of the group to which the perpetrators of the crime consider that they themselves belong and which to them displays specific national, ethnical, racial or religious characteristics.⁴⁹ Thereby, all individuals thus rejected would, by exclusion, make up a distinct group.”⁵⁰ The Jelisic Trial Chamber had found that approach “consistent with the object and purpose of the [Genocide] Convention” as well as with the Commission of Experts Report. Following the Trial Chamber’s decision in the present case, the Brdanin Trial Chamber also rejected the Jelisic approach without explanation.⁵¹ The question whether the group targeted for genocide can be defined negatively is one of first impression for the Appeals Chamber.

20. Article 4 of the Tribunal’s Statute defines genocide as one of several acts “committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such”.⁵² The term “as such” has great significance, for it shows that the offence requires intent to destroy a collection of people who have a particular group identity. Yet when a person targets individuals because they lack a particular national, ethnical, racial, or religious characteristic, the intent is not to destroy particular groups with particular identities as such, but simply to destroy individuals because they lack certain national, ethnical, racial or religious characteristics.

21. This reading of Article 4 finds support in the etymology of the term “genocide ”, and in the definition of the crime given by Raphaël Lemkin, the scholar who first conceptualised the term. Raphaël Lemkin explained that he created the word “genocide ” by combining “the ancient Greek word genos (race, tribe) and the Latin cide (killing)”.⁵³ The combined term therefore describes “the destruction of a nation or of an ethnic group”.⁵⁴ Raphaël Lemkin elaborated that genocide “is intended … to signify a co-ordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups”.⁵⁵ “The objectives of such a plan”, he added, “would be disintegration of the political and social institutions, of culture, language, national feelings, religion, and the economic existence of national groups”.⁵⁶ Indeed, Raphaël Lemkin explained that genocide constitutes such a serious offence in part because the world loses “future contributions” that would be “based upon [the destroyed group’s] genuine traditions, genuine culture, and … well-developed national psychology.” Thus, genocide was originally conceived of as the destruction of a race, tribe, nation, or other group with a particular positive identity – not as the destruction of various people lacking a distinct identity.

22. The drafting history of the Genocide Convention, whose second article is repeated verbatim in Article 4(2) of the Tribunal’s Statute, shows that the Genocide Convention was meant to incorporate this understanding of the term genocide – an understanding incompatible with the negative definition of target groups. General Assembly Resolution 96(I) defined genocide as the “denial of the right of existence of entire human groups”.⁵⁷ Members of the General Assembly’s Sixth Committee, which prepared the final text of the Genocide Convention, echoed this view, making clear that leading countries viewed genocide as the destruction of “human groups”,⁵⁸ not just the destruction of individuals because they have, or lack, national, ethnical, racial, or religious characteristics. Perhaps even more tellingly, members of the Sixth Committee declined to include destruction of political groups within the definition of genocide, accepting the position of countries that wanted the Convention to protect only “definite groups distinguished from other groups by certain well-established ”, immutable criteria.⁵⁹ Given that negatively defined groups lack specific characteristics, defining groups by reference to a negative would run counter to the intent of the Genocide Convention’s drafters.

23. Debates within the Sixth Committee about whether “cultural genocide” should be proscribed also show that Committee members did not envision the negative definition of target groups. Supporters of the “cultural genocide” concept “argued that a group could be suppressed by extinguishing [its] specific traits, as well as by physical destruction.”⁶⁰ Opponents of the concept, who found it too vague, succeeded in keeping the Convention focused on the physical destruction of groups.⁶¹ The mere fact that it was considered, however, shows that the Convention’s drafters viewed target groups as groups with specific distinguishing characteristics. As previously explained, unlike positively defined groups, negatively defined groups have no unique distinguishing characteristics that could be destroyed.

24. Since the Genocide Convention was adopted, experts have continued to discuss the possibility of a ban on “cultural genocide.”⁶² Moreover, pointing to the words “as such” in the Genocide Convention, they have reiterated that genocide focuses on the destruction of groups, not individuals.⁶³ This suggests that there has been no relevant change in how the Genocide Convention’s provisions on target groups have been understood. Indeed, observing that members of the Sixth Committee felt that “genocide should generally be regarded as a crime committed against a group of individuals permanently possessing certain common features”,⁶⁴ the UN Economic and Social Council’s 1978 Study on the Prevention and Punishment of the Crime of Genocide suggested that the Genocide Convention protects, for instance, a group comprised of “persons of a common national origin”⁶⁵ or “any religious community united by a single spiritual ideal.”⁶⁶ Thus, well after the Convention was adopted, leading commentaries continued to suggest that genocide entails the destruction of unique, positively defined groups with particular identities.

25. The Prosecution raises arguments regarding support in the jurisprudence for a subjective definition of the target group. The Appeals Chamber considers these arguments to be misguided for two reasons. First, contrary to what the Prosecution argues, the Krstic and Rutaganda Trial Judgements do not suggest that target groups may only be defined subjectively, by reference to the way the perpetrator stigmatises victims. The Trial Judgement in Krstic found only that “stigmatisation … by the perpetrators” can be used as “a criterion” when defining target groups – not that stigmatisation can be used as the sole criterion. Similarly, while the Rutaganda Trial Chamber found national, ethnical, racial, and religious identity to be largely subjective concepts, suggesting that acts may constitute genocide so long as the perpetrator perceives the victim as belonging to the targeted national, ethnical, racial, or religious group, it also held that “a subjective definition alone is not enough to determine victim groups, as provided for in the Genocide Convention.”⁶⁷ Other Trial Judgements from the ICTR have also concluded that target groups cannot be only subjectively defined.⁶⁸

26. Second, the Appeals Chamber notes that whether or not a group is subjectively defined is not relevant to whether a group is defined in a positive or a negative way, which is the issue now before the Chamber. Consequently, when a target group is defined in a negative manner (for example non-Serbs), whether the composition of the group is identified on the basis of objective criteria, or a combination of objective and subjective criteria, is immaterial as the group would not be protected under the Genocide Convention.

27. The Prosecution cites only one source actually suggesting that the “negative approach” might be permissible: the Commission of Experts Report. The relevant statement is as follows:

    If there are several or more than one victim groups, and each group as such is protected, it may be within the spirit and purpose of the Convention to consider all the victim groups as a larger entity. The case being, for example, that there is evidence that group A wants to destroy in whole or in part groups B, C and D, or rather everyone who does not belong to the national, ethnic, racial or religious group A. In a sense, group A has defined a pluralistic non-A group using national, ethnic, racial and religious criteria for the definition. It seems relevant to analyse the fate of the non-A group along similar lines as if the non-A group had been homogenous.⁶⁹

    Reliance on the statement of the Commission of Experts in support of a purely negative approach is not persuasive. The Appeals Chamber considers that the Commission, when stating that “each group as such is protected” is, in effect, acknowledging that proof would be necessary that each individual group which makes up the aggregate group is itself a positively defined target group within the terms of the Convention. Only then may more than one protected group be aggregated into a larger 'negative' group for the purposes of protection under Article 4 of the Statute. In such circumstances, it would be inaccurate to suggest that the larger group is in fact defined only by a negative approach.

28. The Appeals Chamber accordingly finds that the Trial Chamber did not err in concluding that the elements of genocide must be separately considered in relation to Bosnian Muslims and Bosnian Croats. The Prosecution’s challenge to this conclusion of the Trial Chamber is dismissed.
    B. The Trial Chamber’s alleged error regarding the targeting of the Bosnian Croats

29. As an alternative to its argument about target group definition, the Prosecution asserts that the Trial Chamber erred in fact when it found that “there was insufficient evidence to show that the Bosnian Croats were a targeted group.”⁷⁰ Elaborating, the Prosecution contends that this finding is inconsistent with the Trial Chamber’s own correct assertion that, “[a]s pointed out by the Trial Chamber in Semanza, ‘there is no numeric threshold of victims necessary to establish genocide’.”⁷¹ Just because there were relatively few Bosnian Croats in Prijedor, the Prosecution argues, does not mean that they were not targeted.⁷² In fact, the Prosecution contends, there was ample evidence in the Trial Chamber’s own findings that authorities in Prijedor had targeted Bosnian Croats for destruction as a group.⁷³

30. The Prosecution points in particular to the SDS’s stated goal of “separation from … the Bosnian Muslims and Bosnian Croats”⁷⁴; the Appellant’s reference to both Croats and Muslims as “our former friends”, his knowledge that they were being ethnically cleansed, and his declaration that “we will not create a common state again”⁷⁵; Radio Prijedor’s propaganda against “non-Serbs”⁷⁶; the Prijedor Red Cross conclusion that Croats were being pressured to leave the ARK⁷⁷; the removal of Croat politicians from the municipal government after the take-over⁷⁸; the looting and destruction of Croat properties and Catholic churches⁷⁹; the shelling of a Croat village and killing of seventy-seven Bosnian Croats⁸⁰; the prevention of Croats from working⁸¹; the detention of Croats and mistreatment in detention camps⁸²; and the almost 50% reduction in the Croat population of Prijedor, which was attributable to the Appellant.⁸³

31. In arguing that Bosnian Croats were targeted, the Prosecution also points to other evidence not cited by the Trial Chamber. In particular, the Prosecution argues, the record shows that: one “Croat victim found dead in a … field ‘had the letter “U” … shaved in his head,’ which was clearly a reference to the Croat Ustasa”⁸⁴; another Croat arrested by Serb police was told “fuck you Ustacha’s mother [sic.]… we [are] going to kill all of you balijas and ustashas [sic.]…”⁸⁵; a Croat detainee in one of the camps established in Prijedor Municipality was ordered to hold up the three-finger Serb salute while he was beaten.⁸⁶ According to the Prosecution, “[t]he only reasonable inference from [the combination of this evidence and the Trial Chamber’s factual findings] is that Bosnian Croats were also targeted for destruction.”⁸⁷

32. The Appellant submits that the evidence does not support the Prosecution’s claim that Bosnian Croats were a group targeted for genocide. According to the Appellant, the Prosecution can only argue the Croat group was targeted by diluting the requirements for a genocide conviction – the Appellant suggests that genocide convictions are proper only when many members of a large, recognised group (like Bosnian Croats) are killed, permitting the inference that the group was targeted, and that here the Prosecution seeks to define the target group narrowly, as Croat men of military age in Prijedor Municipality, so that evidence some were killed would show the group was targeted.⁸⁸ Moreover, the Appellant contends, there was much evidence in the record indicating that he never exhibited any ethnic prejudices against anyone (including Croats), that Croats continuously held high ranks within the Bosnian Serb Army, that Croat businesses and employees continued to work in the same manner after the take-over, and that Croats were treated the same as all other nationalities in benefits eligibility.⁸⁹ There was also evidence that a number of Croat towns and religious sites were not systematically targeted and destroyed.⁹⁰

33. The Appeals Chamber notes that the Trial Chamber found that “the majority of victims of acts potentially [constituting the actus reus of genocide under] the Statute belong[ed] to the Bosnian Muslim group.”⁹¹ Then, observing that “the number of Croats in the Municipality of Prijedor was limited,” the Trial Chamber concluded that “the evidence of crimes committed against Croats [was] insufficient to allow it to conclude that the Bosnian Croat group was separately targeted.”⁹²

34. Contrary to what the Prosecution argues, the Trial Chamber did not find that, because the Bosnian Croat group in Prijedor Municipality was of limited size, there was insufficient evidence to support a conclusion that it had been separately targeted. Instead, the Trial Chamber simply noted the limited number of Bosnian Croats in Prijedor Municipality, and independently concluded that “the evidence of crimes committed against Croats” was insufficient to allow it to conclude that this group had been separately targeted.⁹³ The Appeals Chamber may reverse this conclusion only if no reasonable Trial Chamber could have failed to find that the Bosnian Croat group was targeted.⁹⁴

35. It is true, as the Prosecution points out, that the Trial Chamber identified a number of individual violent acts whose victims were members of the Bosnian Croat group. Croats were killed in an attack on the village of Brisevo, some Croat homes in the Municipality of Prijedor were looted and destroyed, and certain Catholic churches were also destroyed.⁹⁵ Moreover, the Trial Chamber noted that the Prijedor Red Cross found “great pressure for citizens of Muslim or Croatian nationality to leave the AR Krajina.”⁹⁶ Yet the fact that some Croats, some Croat properties, and some sites of importance to Croats were victimised does not necessarily compel the conclusion that the Croat group as such was targeted by acts that could constitute the actus reus for genocide. Indeed, at the close of the Prosecution’s case, the Appellant asserts, and the Prosecution does not deny, the Trial Chamber found there was insufficient evidence to conclude that certain Croat towns were the subject of attacks.⁹⁷ In light of the totality of the evidence concerning crimes against Croats, then, it was not unreasonable for the Trial Chamber to have found that it could not “conclude that the Bosnian Croat group was separately targeted.”⁹⁸
    C. Conclusion

36. The Appeals Chamber concludes that the Trial Chamber did not err in law either by defining the groups allegedly targeted for genocide as Bosnian Muslims and Bosnian Croats rather than “non-Serbs”, or by finding that the Bosnian Croat group was not separately targeted for genocide. This ground of appeal is dismissed.
    IV. THE PROSECUTION’S FIRST AND SECOND GROUNDS OF APPEAL: MENS REA FOR GENOCIDE

37. The Trial Chamber acquitted the Appellant of genocide against Bosnian Muslims because it was “not satisfied that [he] possessed the requisite dolus specialis ”.⁹⁹ According to the Trial Chamber, though the evidence established “that the common goal of the members of the SDS in the Municipality of Prijedor, including Dr. Stakic as President of the Municipal Assembly, was to establish a Serbian municipality, there is insufficient evidence of an intention to do so by destroying in part the Muslim group.”¹⁰⁰ Under the first and second grounds of its appeal, the Prosecution raises six challenges to this conclusion. First, it contends that the Trial Chamber erred in considering the mens rea of others – namely, the direct perpetrators of the crimes in Prijedor – rather than focusing on the Appellant’s mental state alone. Second, it argues that the Trial Chamber improperly required the Prosecution to prove an intent to kill all Bosnian Muslims in the region. Third, the Prosecution argues that the Trial Chamber confused motive with intent, erroneously concluding that because the Appellant’s ultimate motive was simply to remove the Bosnian Muslims from Prijedor, he did not intend to destroy the group as a means to that end. Fourth, the Prosecution argues that the Trial Chamber erroneously failed to consider the Appellant’s intent to inflict conditions of life calculated to bring about destruction. Fifth, it contends that the Trial Chamber failed to draw proper inferences from the Appellant’s utterances. Finally, the Prosecution maintains that the Trial Chamber ignored or gave insufficient weight to several categories of relevant evidence bearing on the Appellant’s mens rea, and the only reasonable inference from the totality of the evidence is that the Appellant intended to destroy the Bosnian Muslim population in part. The Appeals Chamber will consider each of these contentions in turn.

38. Before addressing these arguments, the Appeals Chamber notes that in its analysis the Trial Chamber took the view that the third category of joint criminal enterprise was inapplicable to the crime of genocide.¹⁰¹ The Appeals Chamber notes that this view was subsequently clarified by the Appeals Chamber in another case, such that it is now clear that the third category of joint criminal enterprise and the crime of genocide are indeed compatible.¹⁰² The Appeals Chamber, however, will not consider whether the Trial Chamber should have found the Appellant guilty of genocide pursuant to the third category of joint criminal enterprise, as the Prosecution expressly declined to argue that the Trial Chamber should have done so.¹⁰³
    A. Mens Rea of other perpetrators

39. In Paragraph 555 of the Judgement, the Trial Chamber stated:

    The Trial Chamber has considered whether anyone else on a horizontal level in the Municipality of Prijedor had the dolus specialis for genocide by killing members of the Muslim group but concludes that there is no compelling evidence to this effect. Simo Drljaca, Prijedor Police Chief, played an important role in establishing and running the camps, and was portrayed by the evidence as being a difficult or even brutal person, but the Trial Chamber is not satisfied that Drljaca pulled the Crisis Staff into a genocidal campaign.

    The Prosecution argues that these statements improperly focus on the mental state of other perpetrators rather than on that of the Appellant alone.¹⁰⁴

40. In context, however, it is clear that the Trial Chamber did not suggest that genocidal intent on the part of others was a prerequisite to convicting the Appellant for genocide. Rather, it simply considered whether the apparent intentions of others – such as other members of the Crisis Staff – could provide indirect evidence of the Appellant’s own intentions when he agreed with those others to undertake criminal plans. The Trial Chamber also considered the direct evidence of the Appellant’s mental state, including his statements, and found it insufficient to establish genocidal intent.¹⁰⁵ The Appeals Chamber sees no error in this approach.
    B. Intent to kill all Muslims in Prijedor

41. In paragraph 553 of its Judgement, the Trial Chamber found that there was insufficient evidence of an intention to achieve a Serbian municipality “by destroying in part the Muslim group”. It reasoned, in relevant part:

    Had the aim been to kill all Muslims, the structures were in place for this to be accomplished. The Trial Chamber notes that while approximately 23,000 people were registered as having passed through the Trnopolje camp at various times when it was operational and through other suburban settlements,¹⁰⁶ the total number of killings in Prijedor municipality probably did not exceed 3, 000.¹⁰⁷

    The Prosecution argues that the Trial Chamber erroneously took the failure to kill all Muslims in the Prijedor municipality as indicative of a lack of intent to destroy the Muslim group. The Appellant responds simply that the Trial Chamber did not “require all members of the group to be killed” in order to establish genocidal intent.

42. Contrary to what the Prosecution argues, paragraph 553 does not suggest that the Trial Chamber thought genocide requires intent to kill all members of the target group. In that very paragraph, the Trial Chamber specifically found that the Prosecution had not proven that the Appellant sought to “destroy[] in part the Muslim group.”¹⁰⁸ To be sure, the Trial Chamber also found that “[h]ad the aim been to kill all Muslims, the structures were in place for this to be accomplished.”¹⁰⁹ Yet the Trial Chamber cited this fact because it constitutes evidence that the Appellant did not seek to destroy the Bosnian Muslim group in whole or in part – the fact that more Bosnian Muslims could have been killed, but were not, indicates that the Appellant lacked dolus specialis. While the Trial Chamber might have expressed itself more clearly, it did not commit any error.
    C. The relationship between motive and intent

43. In Paragraph 553 of its Judgement, the Trial Chamber stated:

    While the Trial Chamber is satisfied that the common goal of the members of the SDS in the Municipality of Prijedor, including Dr. Stakic as President of the Municipal Assembly, was to establish a Serbian municipality, there is insufficient evidence of an intention to do so by destroying in part the Muslim group. The Trial Chamber believes that the goal was rather to eliminate any perceived threat, especially by Muslims, to the overall plan and to force non-Serbs to leave the Municipality of Prijedor. Security for the Serbs and protection of their rights seems to have been the paramount interest. As one member of the ECMM delegation which visited Prijedor Municipality in late August 1992 pointed out, “the conclusion to be drawn from what we have seen is that the Muslim population is not wanted and is being systematically kicked out by whatever method is available”.¹¹⁰

44. The Prosecution argues that the Trial Chamber improperly conflated the questions of motive and intent, concluding that because the Appellant’s underlying motive (to establish a Serb municipality, which could be achieved by mere displacement of non-Serbs) was not necessarily genocidal, he must have lacked genocidal intent.¹¹¹ The Appellant asserts that the Prosecution misunderstands the significance of the Trial Chamber’s conclusion that he sought to eliminate Muslims from Prijedor. The Appellant contends that the Trial Chamber merely found that it had insufficient evidence suggesting that he sought to eliminate Muslims from Prijedor by physically destroying the Muslim group and thus he lacked genocidal intent.¹¹² According to the Appellant, the Trial Chamber rightly distinguished between intent to displace members of a group and intent to destroy that group.¹¹³

45. The Prosecution is correct that the Tribunal’s jurisprudence distinguishes between motive and intent; in genocide cases, the reason why the accused sought to destroy the victim group has no bearing on guilt.¹¹⁴ The Appeals Chamber agrees with the Appellant, however, that the Trial Chamber expressly distinguished between the “goal” of the operation – that is, motive – and the methods that the Appellant intended to employ in order to bring that goal about. With respect to the latter, the Trial Chamber found “insufficient evidence of an intention to [achieve the goal] by destroying in part the Muslim group”. The Trial Chamber specifically considered whether the Appellant intended to achieve his goal through particular actions, including killing and imposing of inhumane conditions of life, which amounted to genocide. The Appeals Chamber sees no error in this approach.
    D. Conditions of life calculated to bring about destruction

46. Paragraph 557 of the Trial Judgement states:

    For the same reasons [as set forth above with respect to acts of killing and bodily harm], the Trial Chamber finds that the dolus specialis has not been proved in relation to “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.” The Trial Chamber recalls in this context that deporting a group or part of a group is insufficient if it is not accompanied by methods seeking the physical destruction of the group.

    The Prosecution argues that the Trial Chamber erred in focusing exclusively on acts of deportation; instead, it contends, the Trial Chamber should have considered whether the atrocious living conditions in the detention camps and during the deportation process were calculated to bring about the destruction of the Bosnian Muslim population.¹¹⁵

47. It is true that the Trial Chamber did not specifically discuss whether the conditions that prevailed in detention camps and deportation convoys constituted evidence of an intent to destroy the population through the infliction of intolerable conditions of life. But a Trial Chamber need not spell out every step of its analysis. Here, rather than repeating itself unnecessarily, the Trial Chamber referred back to its analysis in previous paragraphs in relation to the Appellant’s mental state – for instance, its conclusion that the Appellant’s public statements suggested that his intention was only to displace the Bosnian Muslim population and not to destroy it. This analysis was equally applicable to all of the alleged genocidal acts, including the imposition of intolerable living conditions pointed to by the Prosecution.

48. Moreover, the Trial Chamber’s reference to deportation in this paragraph does not suggest that it thought that the only relevant “conditions of life” were the acts of deportation themselves. Indeed, as the Prosecution itself observes, the Trial Chamber’s own factual findings elsewhere in the Judgement illustrate that it was well aware of the evidence demonstrating the terrible conditions in the camps and on deportation buses.¹¹⁶ It can be assumed that the Trial Chamber took this evidence into account when it considered the mens rea question, even if it made no specific reference to it.¹¹⁷ The Prosecution’s related argument that this evidence, in combination with the other evidence adduced at trial, required an inference of genocidal intent will be considered in Section F below.
    E. Inferences from the Appellant’s utterances

49. The Prosecution argues that the Trial Chamber erred in its assessment of the Appellant’s utterances. It argues that the Trial Chamber gave inadequate weight to the Appellant’s derogatory statements, his use of the term ciscenje (cleansing) to describe certain military operations, his participation in a propaganda campaign that demonised Bosnian Muslims and Croats, and certain statements acknowledging (although denying) allegations of genocide.

50. The Appellant responds that the Trial Chamber drew reasonable inferences from his statements, and that it was not compelled to draw an inference of genocidal intent from his statements.¹¹⁸ Evidence at trial demonstrates that at various times he spoke of his desire for peace in Prijedor,¹¹⁹ and that he did not give nationalistic or incendiary speeches.¹²⁰

51. In paragraph 554 of its Judgement, the Trial Chamber stated:

    Even though Dr. Stakic helped to wage an intense propaganda campaign against Muslims, there is no evidence of the use of hateful terminology by Dr. Stakic himself from which the dolus specialis could be inferred. Statements made by Dr. Stakic do not publicly advocate killings and while they reveal an intention to adjust the ethnic composition of Prijedor, the Trial Chamber is unable to infer an intention to destroy the Muslim group. This inference cannot be drawn from Dr. Stakic’s remark that Muslims in Bosnia “were created artificially”¹²¹ and his interview in January 1993 with German television, while demonstrating intolerance of Muslims, advocated the removal of “enemy” Muslims from Prijedor rather than the physical elimination of all Muslims. The interview concludes with the statement: “those who stained their hands with blood will not be able to return. Those others, if they want…when the war ends, will be able to return”.¹²² The intention to displace a population is not equivalent to the intention to destroy it.

52. The Trial Chamber thus clearly considered the Appellant’s derogatory statements and propaganda, and the Appeals Chamber concludes that its assessment of them was reasonable. Evidence demonstrating ethnic bias, however reprehensible, does not necessarily prove genocidal intent. It is true, as the Prosecution suggests, that utterances might constitute evidence of genocidal intent even if they fall short of express calls for a group’s physical destruction; a perpetrator’s statements must be understood in their proper context. In the context of events such as those occurring at Prijedor, ethnic slurs and calls for ethnic cleansing might reasonably be understood as an implied call for the group’s destruction.¹²³ But it is for the Trial Chamber in the first instance to draw factual inferences from indirect evidence. On the facts of this case, the Prosecution has not demonstrated that no reasonable Trial Chamber could fail to conclude that the Appellant’s utterances demonstrated his genocidal intent beyond a reasonable doubt. The Appeals Chamber will consider the implications of the utterances in combination with the remainder of the evidence in the following section.
    F. The Trial Chamber’s assessment of the totality of the evidence

53. In addition to the specific legal and factual errors set forth above, the Prosecution argues generally that the totality of the evidence points to only one reasonable conclusion: that the Appellant’s genocidal intent was established beyond a reasonable doubt.¹²⁴ In failing to reach this conclusion, the Prosecution contends, the Trial Chamber improperly compartmentalised its inquiry, considering the mens rea evidence separately with respect to the various genocidal acts alleged rather than taking into account the totality of the evidence. Moreover, it ignored or underweighted several of its own factual findings: (1) that the Appellant participated in “a campaign to create a greater Serbia, which entail[ed] the elimination of specific ethnic/religious groups from the Municipality of Prijedor”¹²⁵; (2) that widespread and systematic attacks on the Muslim population took place, including “atrocities”, killings, beatings, and destructive conditions of life¹²⁶; (3) that certain acts targeted the foundation of Bosnian Muslim and Croat identities, including destruction of religious sites and homes, use of derogatory slurs, frequent rape and sexual assault, arbitrary dismissals from jobs, and targeting of Bosnian Muslim and Croat leaders for death or slander¹²⁷; and (4) that the Appellant knew about these crimes, was criminally responsible for them, and had discriminatory intent with respect to them.¹²⁸

54. The Appellant responds that the Trial Chamber rightly concluded that there was insufficient evidence to prove that he or others in Prijedor had the requisite dolus specialis,¹²⁹ and that it considered all the relevant factors.¹³⁰ Denying that a plan or the intent to destroy non-Serbs in Prijedor municipality can be inferred from the nature and scope of the crimes committed against Muslims and Croats,¹³¹ the Appellant observes that “[t]he fact that a lot of people died does not in and of itself result in the occurrence of genocide”,¹³² as these crimes were random, spontaneous, and isolated.¹³³ In support of his contention the Appellant lists Bosnian Croat and Bosnian Muslim religious sites that were left intact,¹³⁴ and adds that the Prosecution conceded that “at the very least, an additional twelve [Muslim] villages within Prijedor municipality” were never attacked.¹³⁵ The Appellant suggests that other evidence in the trial record belies the notion that there was a plan or an intent to destroy non-Serbs in Prijedor.¹³⁶

55. The Appeals Chamber agrees with the Prosecution that the Trial Chamber’s compartmentalised mode of analysis obscured the proper inquiry. Rather than considering separately whether the Appellant intended to destroy the group through each of the genocidal acts specified by Article 4(1)(a), (b), and (c), the Trial Chamber should expressly have considered whether all of the evidence, taken together, demonstrated a genocidal mental state. Nonetheless, it does not appear that the Trial Chamber’s piecemeal approach had any effect on its conclusion. The reasons it gave with respect to Article 4(1)(b) and (c) simply cross-referenced its analysis of mental state with respect to Article 4(1)(a), in which it concluded that there simply was no evidence in the record (including, for example, the Appellant’s statements) that proved that the Appellant sought to destroy the Muslim population. In reaching this conclusion, it must be assumed, the Trial Chamber was obviously aware of its own factual findings, but found them insufficient to establish intent beyond a reasonable doubt.

56. The Appeals Chamber cannot find that this conclusion was unreasonable. Without question, the Trial Chamber made factual findings which could, in principle, be taken as evidence that the Appellant intended to destroy the Bosnian Muslim group in part, including those identified by the Prosecution above. But when the Prosecution appeals from factual findings against it, it bears a heavy burden of persuasion. The Appeals Chamber cannot conclude that the evidence in this case is so unambiguous that a reasonable Trial Chamber was obliged to infer that intent was established beyond a reasonable doubt. To the contrary, the evidence could reasonably be seen as consistent with the conclusion the Trial Chamber did draw: that the Appellant merely intended to displace, but not to destroy, the Bosnian Muslim group. To be sure, he was willing to employ means to this end that ensured that some members of the group would be killed and others brutalised, and this was surely criminal – but not necessarily genocidal, absent evidence proving beyond a reasonable doubt that he sought the destruction of the group as such. The Trial Chamber’s conclusion that this evidence was lacking was reasonable, particularly in light of certain contrary evidence, such as the Appellant’s statement that Bosnian Muslims who did not take part in hostilities would be permitted to return to Prijedor after the war.

57. For these reasons, the Prosecution’s first and second grounds of appeal are dismissed.
    V. JOINT CRIMINAL ENTERPRISE AND THE MODE OF LIABILITY APPLIED BY THE TRIAL CHAMBER
    A. The mode of liability applied by the Trial Chamber

58. In its analysis of the responsibility of the Appellant, the Trial Chamber specifically rejected the application of joint criminal enterprise as a mode of liability despite the fact that it had been pleaded by the Prosecution both in the Indictment¹³⁷ and at trial.¹³⁸ Although the Trial Chamber acknowledged the Appeals Chamber’s holdings recognising the joint criminal enterprise doctrine,¹³⁹ it expressed some reservations about that doctrine¹⁴⁰ and stated that “a more direct reference to ‘commission’ in its traditional sense should be given priority before considering responsibility under the judicial term ‘joint criminal enterprise’.”¹⁴¹ Thus, in lieu of joint criminal enterprise, the Trial Chamber applied a mode of liability which it termed “co-perpetratorship”. This mode of liability appears to be new to the jurisprudence of this Tribunal. The Trial Chamber explained the characteristics of this mode of liability and then applied it in order to describe the responsibility of the Appellant.¹⁴²

59. Neither party has appealed the Trial Chamber’s application of this mode of liability. However, the question of whether the mode of liability developed and applied by the Trial Chamber is within the jurisdiction of this Tribunal is an issue of general importance warranting the scrutiny of the Appeals Chamber proprio motu. The introduction of new modes of liability into the jurisprudence of the Tribunal may generate uncertainty, if not confusion, in the determination of the law by parties to cases before the Tribunal as well as in the application of the law by Trial Chambers. To avoid such uncertainty and ensure respect for the values of consistency and coherence in the application of the law, the Appeals Chamber must intervene to assess whether the mode of liability applied by the Trial Chamber is consistent with the jurisprudence of this Tribunal. If it is not consistent, the Appeals Chamber must then determine whether the Trial Chamber’s factual findings support liability under another, established mode of liability, such as joint criminal enterprise.

60. With this goal in mind, the Parties were requested to present oral submissions to the Appeals Chamber during the Appeal Hearings, responding inter alia to the following question: “If the Appellant’s responsibility were to be analysed in terms of joint criminal enterprise (“JCE”), would the elements of JCE be fulfilled based on the findings of the Trial Chamber?”¹⁴³

61. The Appellant argued that the factual findings of the Trial Chamber do not support the finding of joint criminal enterprise.¹⁴⁴ The Prosecution submitted that the evidence at trial was “sufficient to sustain a conviction on a JCE theory”,¹⁴⁵ and furthermore that some of the Trial Chamber’s findings can easily be interpreted to support liability under a joint criminal enterprise theory.¹⁴⁶ While clearly stating that joint criminal liability could be found to attach based on the findings at trial, the Prosecution expressed its concerns that (1) neither party had challenged the mode of liability in the Trial Judgement and any answer in the hearing would be in the abstract; (2) the question should not be decided by the Appeals Chamber except after full briefing and argumentation by the parties ; (3) the Trial Chamber itself did not analyse the evidence on a joint criminal enterprise theory; and (4) any such analysis would require a review of the entire record.¹⁴⁷

62. Upon a careful and thorough review of the relevant sections of the Trial Judgement, the Appeals Chamber finds that the Trial Chamber erred in conducting its analysis of the responsibility of the Appellant within the framework of “co-perpetratorship ”. This mode of liability, as defined and applied by the Trial Chamber, does not have support in customary international law or in the settled jurisprudence of this Tribunal, which is binding on the Trial Chambers. By way of contrast, joint criminal enterprise is a mode of liability which is “firmly established in customary international law”¹⁴⁸ and is routinely applied in the Tribunal’s jurisprudence.¹⁴⁹ Furthermore, joint criminal enterprise is the mode of liability under which the Appellant was charged in the Indictment, and to which he responded at trial.¹⁵⁰ In view of these reasons, it appears that the Trial Chamber erred in employing a mode of liability which is not valid law within the jurisdiction of this Tribunal. This invalidates the decision of the Trial Chamber as to the mode of liability it employed in the Trial Judgement.

63. For these reasons, the Appeals Chamber finds that the relevant part of the Trial Judgement must be set aside. In order to remedy this error, the Appeals Chamber will apply the correct legal framework to the factual conclusions of the Trial Chamber to determine whether they support joint criminal enterprise liability for the crimes charged.
    B. The requirements for joint criminal enterprise liability

64. The Tribunal’s jurisprudence recognises three categories of joint criminal enterprise liability.¹⁵¹ Regardless of the category at issue, or the charge under consideration, a conviction requires a finding that the accused participated in a joint criminal enterprise. There are three requirements for such a finding. First, a plurality of persons is required. They need not be organised in a military, political or administrative structure.¹⁵² Second, the existence of a common purpose which amounts to or involves the commission of a crime provided for in the Statute is required.¹⁵³ There is no need for this purpose to have been previously arranged or formulated. It may materialise extemporaneously and be inferred from the facts.¹⁵⁴ Third, the participation of the accused in the common purpose is required.¹⁵⁵ This participation need not involve the 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.

65. The mens rea required for a finding of guilt differs according to the category of joint criminal enterprise liability under consideration. For first category, or “basic” joint criminal enterprise liability, it must be shown that the accused and the other participants in the joint criminal enterprise intended that the crime at issue be committed.¹⁵⁶ For second category joint criminal enterprise liability, it must be shown that an organised criminal system exists – as is the case with concentration or detention camps. The accused must be shown to have personal knowledge of the system and intent to further the criminal purpose of the system¹⁵⁷ – the personal knowledge may be proven by direct evidence or by reasonable inference from the accused’s position of authority.¹⁵⁸ The third or “extended” category of joint criminal enterprise liability allows conviction of a participant in a joint criminal enterprise for certain crimes committed by other participants in the joint criminal enterprise even though those crimes were outside the common purpose of the enterprise. The accused can be found to have third category joint criminal enterprise liability if he or she intended to further the common purpose of the joint criminal enterprise and the crime was a natural and foreseeable consequence of that common purpose.¹⁵⁹ In other words, liability attaches “if, under the circumstances of the case, (i) it was foreseeable that such a crime might be perpetrated by one or other members of the group and (ii) the accused willingly took that risk”.¹⁶⁰ The crime must be shown to have been foreseeable to the accused in particular.¹⁶¹
    C. The application of joint criminal enterprise to the factual findings

66. In the present case, the Indictment did not explicitly mention the categories of the joint criminal enterprise doctrine pursuant to which the Appellant was charged. But no such express language was necessary, because the Indictment’s allegations nonetheless made it clear that the Prosecution intended to rely on both the first and third categories of joint criminal enterprise. In paragraph 26 of the Indictment, the Prosecution alleged that the purpose of the joint criminal enterprise was a campaign of persecutions that encompassed the crimes alleged in counts 1 through 8 of the Indictment. In this paragraph, it was plainly alleging a basic joint criminal enterprise: the crimes alleged were within the common purpose. In paragraphs 28 and 29 of the Indictment, however, the Prosecution set out an alternative theory :

    Alternatively, the accused is individually responsible for the crimes enumerated in Counts 1 to 8 on the basis that these crimes were natural and foreseeable consequences of the execution of the common purpose of the joint criminal enterprise and Milomir STAKIC was aware that these crimes were the possible consequence of the execution of the joint criminal enterprise.¹⁶²

    Despite his awareness of the possible consequences, Milomir STAKIC knowingly and wilfully participated in the joint criminal enterprise. On this basis, he bears individual criminal responsibility for these crimes under Article 7(1) in addition to his responsibility under the same article for having planned, instigated, ordered or otherwise aided and abetted in the planning, preparation, or execution of these crimes.¹⁶³

    The language of these paragraphs mirrors the requirements for the third category of joint criminal enterprise. The Appeals Chamber considers that this method of pleading satisfies the requirement, set forth in the Kvocka Appeal Judgement, that the Prosecution plead in the Indictment the specific category of joint criminal enterprise on which it intends to rely.¹⁶⁴

67. The Appeals Chamber will therefore first consider whether the Trial Chamber’s factual findings establish that the Appellant participated in a joint criminal enterprise as alleged in the Indictment, and in the process the Appeals Chamber will determine what crimes – according to the Trial Chamber’s factual findings – the common purpose of the joint criminal enterprise encompassed. The Appeals Chamber will then consider whether the Trial Chamber’s factual findings show that the Appellant bears first category joint criminal enterprise liability for the crimes encompassed by the criminal common purpose; the Appeals Chamber will do so by considering whether the Trial Chamber’s factual findings show that these crimes were committed and that the Appellant participated in the joint criminal enterprise with the intent that they be committed. Next, the Appeals Chamber will consider whether the Trial Chamber’s factual findings establish that the Appellant bears third category joint criminal enterprise liability for crimes committed outside the scope of the common purpose.
    1. Did the Appellant participate in a joint criminal enterprise?

    (a) The participants in the alleged joint criminal enterprise

68. The Indictment identified the participants in the joint criminal enterprise as follows:

    Numerous individuals participated in this joint criminal enterprise, including Milomir STAKIC, Milan KOVACEVIC, Simo DRLJACA, other members of the Prijedor Crisis Staff, members of the Assembly of the Serbian People in Prijedor Municipality and Assembly’s Executive Committee, Radoslav BRÐANIN, General Momir TALIC and Stojan ZUPLJANIN, other members of the ARK Crisis Staff, the leadership of the Serbian republic and the SDS, including Radovan KARADZIC, Momcilo KRAJISNIK and Biljana PLAVSIC, members of the Assembly of the ARK and the Assembly’s Executive Committee, the Serb Crisis staffs of the ARK municipalities, members of the VRS, Serb and Bosnian Serb paramilitary forces and others.¹⁶⁵

    In line with the Indictment and its assessment of the evidence, the Trial Chamber found that the following persons, whom it called “co-perpetrators”, participated in the common goal of the “co-perpetratorship”:¹⁶⁶

    the authorities of the self-proclaimed Assembly of the Serbian People in Prijedor Municipality, the SDS, the Prijedor Crisis Staff, the Territorial Defence and the police and military. In particular, Dr. Stakic acted together with the Police Chief, Simo Drljaca, prominent members of the military such as Colonel Vladimir Arsic and Major Radmilo Zeljaja [sic.], the president of the Executive Committee of Prijedor Municipality, Dr. Milan Kovacevic, and the Commander both of the Municipal Territorial Defence Staff and the Trnopolje camp, Slobodan Kuruzovic.¹⁶⁷

69. The Appeals Chamber considers that the Trial Chamber’s findings demonstrate that there was a plurality of persons that acted together in the implementation of a common goal. This group included the leaders of political bodies, the army, and the police who held power in the Municipality of Prijedor.

70. The Appeals Chamber notes that the Trial Chamber found the participants to include Radmilo Zeljaja and Slobodan Kuruzovic, although neither name was expressly mentioned in the Indictment. However, the Indictment did plead that the participants in the joint criminal enterprise included “members of the VRS, Serb and Bosnian Serb paramilitary forces”. This reference would thus include Zeljaja, who was Chief of Staff of the 343rd Motorised Brigade,¹⁶⁸ and Kuruzovic, who was the Commander of the Prijedor TO Municipal Staff and the Trnopolje camp.¹⁶⁹ As such, the Trial Chamber could reasonably find that these individuals participated in the criminal plan charged in the Indictment.

    (b) The Common Purpose of the alleged joint criminal enterprise

71. The Indictment identified the common purpose as follows:

    The purpose of the joint criminal enterprise was the permanent forcible removal of Bosnian Muslim and Bosnian Croat inhabitants from the territory of the planned Serbian state, including a campaign of persecutions through the commission of the crimes alleged in Counts 1 to 8 of the Indictment.¹⁷⁰

    In addition, it specified that:

    This campaign included imposing conditions of life that would force the non-Serb population to leave the area, deportations and forced expulsions.¹⁷¹

72. The Trial Chamber proceeded to find that the identified group of individuals participated in the implementation of a common goal, the objective of which was:

    consolidating Serb power in the municipality [of Prijedor] by forcing non-Serbs to flee or be deported, thereby changing fundamentally the ethnic balance in the municipality.¹⁷²

    The Trial Chamber also found that:

    What is crucial is that these crimes formed part of a persecutorial campaign headed inter alia by Dr. Stakic as (co-)perpetrator behind the direct perpetrators. He is criminally responsible for all the crimes and had a discriminatory intent in relation to all of them…¹⁷³

    Furthermore the Trial Chamber found that:

    [T]here was a persecutorial campaign based on the intent to discriminate against all those who were non-Serb or who did not share the above-mentioned plan to consolidate Serbian control and dominance in the Municipality of Prijedor.¹⁷⁴

73. The Appeals Chamber finds that the common goal identified by the Trial Chamber amounted to a common purpose within the meaning of the Tribunal’s joint criminal enterprise doctrine. This common purpose consisted of a discriminatory campaign to ethnically cleanse the Municipality of Prijedor by deporting and persecuting Bosnian Muslims and Bosnian Croats in order to establish Serbian control (“Common Purpose”). As the Trial Chamber’s findings show, this took place in the period relevant for the Indictment (30 April – 30 September 1992) – hence, the Trial Chamber deemed this goal to have been achieved.¹⁷⁵ The campaign consisted of criminal acts prescribed in the Statute of this Tribunal,¹⁷⁶ notably the crimes against humanity of persecutions, deportation and other inhumane acts (forcible transfer) punishable under Articles 5(h), 5(d) and 5(i) of the Statute respectively.

    (c) The Appellant’s participation in the Common Purpose

74. The Indictment pleaded¹⁷⁷ that the Appellant participated in the Common Purpose of the joint criminal enterprise while serving in a variety of roles, including Vice-President of the SDS Municipal Board in Prijedor; President of a shadow, parallel Assembly of the Serbian People of Prijedor Municipality; President of the Prijedor Municipal Assembly and head of the Prijedor Municipal Council for National Defence; President of the SDS Crisis Staff of Prijedor Municipality, which later became known as the War Presidency¹⁷⁸; and President of the Prijedor Municipal Crisis Staff.¹⁷⁹ More specifically, the Indictment stated that:

    Milomir STAKIC participated in the functioning of the Crisis Staff and actively carried out his duties as President. He presided over Crisis Staff meetings and signed the majority of orders/decisions issued by the Crisis Staff. These orders /decisions included an order to establish the Omarska and Keraterm detention camps ; the principal purpose of which was the persecution of the non-Serb population…¹⁸⁰

    …a member of the Prijedor Crisis Staff, Milomir STAKIC co-operated fully with the VRS, the Civil Defence and the Public Security Station through their senior officers or organs of those institutions. Although the Crisis Staff was not within the army's chain of command, it synchronised and co-ordinated the measures and actions essential for the waging of armed combat and provided logistical support.¹⁸¹

75. The Trial Chamber found that during the period relevant for the Indictment, namely from 30 April to 30 September 1992, the Appellant held the following positions in the Municipality of Prijedor: Vice President of the SDS Municipal Board, President of the self-proclaimed Assembly of the Serbian people of the Municipality of Prijedor, President of the Municipal Assembly, President of the Prijedor Municipal People’s Defence Council, President of the Prijedor Municipal Crisis Staff and President of the Municipal Assembly of Prijedor.¹⁸² The Trial Chamber found that “… as the highest representative of the civilian authorities, Dr. Stakic played a crucial role in the co-ordinated co-operation with the police and army in furtherance of the plan to establish a Serbian municipality in Prijedor.”¹⁸³ In addition, the Trial Chamber found that the Appellant was “… one of the main actors in the persecutorial campaign ”,¹⁸⁴ “actively participated in setting up and running [the camps],”¹⁸⁵ and “took an active role in the organisation of the massive displacement of the non- Serb population out of Prijedor municipality.”¹⁸⁶

76. The Appeals Chamber considers that these findings of the Trial Chamber clearly demonstrate that the Appellant acted in furtherance of the Common Purpose and played an important role in it.

77. On the issue of the role and status of the Appellant in the Municipality of Prijedor, the Appeals Chamber heard evidence from Witness BT106. In a statement which was admitted into evidence, Witness BT106 seemed to suggest, albeit vaguely, that the role and importance of the Appellant in the Municipality of Prijedor was limited. In order to verify the content and reliability of this statement, the Appeals Chamber summoned this witness proprio motu to give oral evidence pursuant to Rule 98. During the hearing, the Appeals Chamber questioned Witness BT106 as to the role of the Appellant in the Municipality of Prijedor. It became apparent that Witness BT106 had little knowledge of either the governance structure of the Municipality of Prijedor or the actions of the Appellant. Consequently, the Appeals Chamber finds that the evidence of BT106 does not cast any doubt on the findings reached by the Trial Chamber concerning the role of the Appellant in the Municipality of Prijedor or his participation in the Common Purpose.

78. The Trial Chamber’s factual findings therefore support the conclusion that the Appellant participated in a joint criminal enterprise the Common Purpose of which was to persecute, deport, and forcibly transfer¹⁸⁷ the Bosnian Muslim and Bosnian Croat populations of Prijedor. To determine whether the Appellant bears first category joint criminal enterprise liability for the crimes encompassed by the Common Purpose, the Appeals Chamber will proceed to examine whether the Appellant intended to further the criminal Common Purpose, and whether the crimes at issue were in fact committed.
    2. Did the Appellant intend to further the Common Purpose of the joint criminal enterprise?

79. The Indictment states that:

    The accused Milomir STAKIC, and the other members of the joint criminal enterprise, each shared the state of mind required for the commission of each of these offences, more particularly, each, was aware that his or her conduct occurred in the context of an armed conflict and was part of a widespread or systematic attack directed against a civilian population.¹⁸⁸

80. The Appeals Chamber considers that various findings of the Trial Chamber reveal the existence of a shared intent among the participants in the joint criminal enterprise. In paragraph 364 of the Judgement, the Trial Chamber found that:

    Evidence supports the finding that the civilian authorities, the police and the military co-operated on the same level within the municipality of Prijedor in order to achieve their aforementioned common goals at any cost.¹⁸⁹

81. In paragraph 477 of the Trial Judgement, the Trial Chamber found that there was an “agreement amongst members of the Crisis Staff to use armed force against civilians and to establish the Omarska, Keraterm and Trnopolje camps”¹⁹⁰ and that:

    the Crisis Staff, presided over by Dr. Stakic, was responsible for establishing the Omarska, Keraterm and Trnopolje camps, and, as discussed before, that there was a coordinated co-operation between the Crisis Staff, later the War Presidency, and members of the police and the army in operating these camps.¹⁹¹

82. As to the intent of the Appellant to further the Common Purpose, the Trial Chamber found that:

    The evidence shows that Dr. Stakic as the leading figure in the municipal government, worked together with the Police Chief, Simo Drljaca, the highest ranking man in the military, Colonel Vladimir Arsic, and the President of the Executive Board, Dr. Milan Kovacevic to implement the SDS-initiated plan to consolidate Serb authority and power within the municipality.¹⁹²

    It noted further that:

    Dr. Stakic knew that his role and authority as the leading politician in Prijedor was essential for the accomplishment of the common goal. He was aware that he could frustrate the objective of achieving a Serbian municipality by using his powers to hold to account those responsible for crimes, by protecting or assisting non- Serbs or by stepping down from his superior positions.¹⁹³

83. With regard to the intent of the Appellant in the commission of the crimes constituting the Common Purpose, the Trial Chamber found that the Appellant was one of the main actors of the persecutorial campaign¹⁹⁴ which was based on the “intent to discriminate against non-Serbs”.¹⁹⁵ With regard to the crimes of deportation and forcible transfer¹⁹⁶ (Article 5(d) and 5(i) of the Statute), the Trial Chamber found that “the [Appellant] intended to deport the non-Serb population from Prijedor municipality.”¹⁹⁷

84. The Appeals Chamber considers that the Trial Chamber’s factual findings demonstrate that the crimes of persecution, deportation, and forcible transfer were in fact committed in accordance with the Common Purpose of this joint criminal enterprise,¹⁹⁸ and that the Appellant shared the intent to further this Common Purpose, and had the intent to commit the underlying crimes.

    (v) Conclusion

85. For the foregoing reasons, an application of the legal framework of joint criminal enterprise to the factual findings of the Trial Chamber leads the Appeals Chamber to conclude that there was a joint criminal enterprise of the first category operating in the Municipality of Prijedor in the period relevant to the Indictment. The Appeals Chamber finds that the Appellant was a participant in that joint criminal enterprise, made a substantial contribution to the implementation of the Common Purpose, and shared the intent to further it.
    3. Does the Appellant incur third category joint criminal enterprise liability for certain crimes falling outside the scope of the enterprise?

86. Having established the existence of a joint criminal enterprise, the Appeals Chamber now turns to the remaining question of whether the factual findings of the Trial Chamber also support a finding of joint criminal enterprise liability for certain crimes beyond the scope of that enterprise.

87. As noted above, for the application of third category joint criminal enterprise liability, it is necessary that: (a) crimes outside the Common Purpose have occurred ; (b) these crimes were a natural and foreseeable consequence of effecting the Common Purpose and (c) the participant in the joint criminal enterprise was aware that the crimes were a possible consequence of the execution of the Common Purpose, and in that awareness, he nevertheless acted in furtherance of the Common Purpose.

    (a) The crimes falling outside the Common Purpose

88. In the Indictment, the Prosecution pleaded third category joint criminal enterprise liability in the following terms:

    Alternatively, the accused is individually responsible for the crimes enumerated in Counts 1 to 8 on the basis that these crimes were natural and foreseeable consequences of the execution of the common purpose of the joint criminal enterprise and Milomir STAKIC was aware that these crimes were the possible consequence of the execution of the joint criminal enterprise.

    Counts 1 to 8 encompassed the crimes of genocide, complicity in genocide, murder as both a war crime and a crime against humanity, extermination, persecutions, deportation and other inhumane acts (forcible transfer).

89. As the Appeals Chamber has established first category joint criminal enterprise liability for persecutions, deportation and other inhumane acts (forcible transfer), and as the Prosecution here expressly denies that it alleges third category joint criminal enterprise liability for genocide, the following analysis is restricted to the crimes of murder (as both a war crime and a crime against humanity) and extermination.

90. The Trial Chamber found that the killings alleged in paragraphs 44 and 47 of the Indictment were proved and that these amounted to murder both as a war crime and as a crime against humanity.¹⁹⁹ In addition, because of their massiveness, they also amounted to the crime against humanity of extermination.²⁰⁰ The Trial Chamber estimated that more than 1,500 people were killed.²⁰¹ The Trial Chamber divided these killings into three categories: (1) killings committed in detention facilities by guards or outsiders permitted to enter these facilities (“camp killings”); (2) killings committed during organised convoys by police and /or military units assigned for the “protection” of those travelling in the convoy (“convoy killings”); and (3) killings committed as a result of armed military and /or police action in non-Serb or predominantly non-Serb areas of Prijedor Municipality (“municipality killings”).

    (b) The crimes were a natural and foreseeable consequence of efforts to carry out the Common Purpose

91. In paragraph 29 of the Indictment, the Prosecution pleaded in the following terms the Appellant’s awareness of the possible consequences of participating in the joint criminal enterprise:

    Despite his awareness of the possible consequences, Milomir STAKIC knowingly and wilfully participated in the joint criminal enterprise. On this basis, he bears individual criminal responsibility for these crimes under Article 7(1) in addition to his responsibility under the same article for having planned, instigated, ordered or otherwise aided and abetted in the planning, preparation, or execution of these crimes.

92. The Appeals Chamber considers that the commission of these crimes was a natural and foreseeable consequence of the implementation of the Common Purpose as described above.²⁰² As it was established at trial, the Appellant

    … and his co-perpetrators acted in the awareness that crimes would occur as a direct consequence of their pursuit of the common goal. The co-perpetrators consented to the removal of Muslims from Prijedor by whatever means necessary and either accepted the consequence that crimes would occur or actively participated in their commission.²⁰³

93. Regarding the camp killings, the Trial Chamber concluded that it “is satisfied beyond reasonable doubt that Dr. Stakic, as President of the Crisis Staff in Prijedor, actively participated in and threw the full support of the civilian authorities behind the decision to establish the infamous Keraterm, Omarksa and Trnopolje camps ”.²⁰⁴ The Appellant “was one of the co-perpetrators in a plan to consolidate Serb power in the municipality at any cost, including the cost of the lives of innocent non-Serb civilians in the camps”, and he “simply accepted that non-Serbs would and did die in those camps”.²⁰⁵ Furthermore, the Trial Chamber found that the Appellant was “fully aware that large numbers of killings were being committed in the camps”, and that he was aware of the pervasive atmosphere of impunity for wrongdoing which prevailed in the camps, and which was likely to result in the death of the detainees.²⁰⁶

94. As to the convoy killings, the Trial Chamber found that many killings occurred during the transportation to camps of the non-Serb civilian population. The Trial Chamber found that the primary perpetrators of these crimes were members of the Prijedor “Intervention Platoon” established by the Crisis Staff presided over by the Appellant.²⁰⁷ As this platoon was comprised of individuals with criminal records and people recently released from jail, the Trial Chamber found that “[t]o entrust the escort of a convoy of unprotected civilians to such groups of men, as Dr. Stakic along with his co-perpetrators on several occasions did in order to complete the plan for a purely Serb municipality, is to reconcile oneself to the reasonable likelihood that those travelling on the convoy will come to grave harm and even death.”²⁰⁸ Thus the Trial Chamber concluded that the Appellant “took an active role in the organisation of the massive displacement of the non-Serb population out of Prijedor municipality”,²⁰⁹ and that, along with his co-perpetrators, the Appellant reconciled himself to the reasonable likelihood that those travelling on convoys would come to grave harm and even death.²¹⁰

95. Concerning the municipality killings, the Trial Chamber found that “many killings [were] committed by the Serb armed military and police forces in the Municipality of Prijedor during the period of the Indictment”,²¹¹ and that the co-operation of all the pillars of the civil and military authorities created and maintained an environment of impunity which “endangered the lives of all non-Serb citizens of Prijedor municipality”.²¹² The Trial Chamber confirmed its finding that the killings were foreseeable to the Appellant:

    The Trial Chamber does not believe that the conscious object of Dr. Stakic’s participation in the creation and maintenance of this environment of impunity was to kill the non-Serb citizens of Prijedor municipality. However, it is satisfied that Dr. Stakic, in his various positions, acted in the knowledge that the existence of such an environment would in all likelihood result in killings, and that he reconciled himself to and made peace with this probable outcome.²¹³

96. In relation to the crime of extermination, the Trial Chamber found that the Appellant “possessed the requisite intent to kill, including the intent to cause serious bodily harm in the reasonable knowledge that it was likely to result in death”²¹⁴ and that “[k]illings were perpetrated on a massive scale against the non-Serb population of Prijedor municipality.”²¹⁵ Furthermore, the Trial Chamber concluded that the Appellant:

    … because of his political position and role in the implementation of the plan to create a purely Serb municipality, was familiar with the details and the progress of the campaign of annihilation directed against the non-Serb population. [The Appellant] was aware of the killings of non-Serbs and of their occurrence on a massive scale. The Trial Chamber is therefore convinced that [the Appellant] acted with the requisite intent, at least dolus eventualis, to exterminate the non-Serb population of Prijedor municipality in 1992 and finds [the Appellant] guilty of this crime, punishable under Article 5(b) of the Statute.²¹⁶

97. In finding that the Appellant acted at least with dolus eventualis to commit extermination, the Trial Chamber concluded that the commission of extermination was likely, the Appellant was aware of this, and he had reconciled himself to that likelihood. This finding fulfills the requisite elements required for third category joint criminal enterprise liability: the crime of extermination was a natural and foreseeable consequence of carrying out the Common Purpose of the joint criminal enterprise, and the Appellant reconciled himself to that outcome.

98. In light of these findings, the Appeals Chamber concludes that the factual findings of the Trial Chamber demonstrate that the Appellant had the requisite mens rea to be found responsible under the third category of joint criminal enterprise for the crimes of murder (as a war crime and as a crime against humanity) and extermination.
    D. The concept of dolus eventualis (“advertent recklessness”) within the context of joint criminal enterprise

99. The Appellant has raised a number of arguments challenging the Trial Chamber’s use of dolus eventualis as a form of mens rea, submitting that the Trial Chamber impermissibly enlarged the mens rea requirement for the crimes against humanity of murder, extermination and persecutions, as well as the war crime of murder, and that by doing so the Trial Chamber violated the principles of nullum crimen sine lege²¹⁷ and in dubio pro reo.²¹⁸ However, since the Appeals Chamber has, in the preceding paragraphs, established that the Appellant incurred first category joint criminal enterprise responsibility for the crimes of persecutions, deportation and other inhumane acts (forcible transfer), and that the Appellant incurred third category joint criminal enterprise responsibility for the crimes of murder and extermination, the Appeals Chamber considers that it is appropriate to address these challenges insofar as they may apply to convictions entered pursuant to joint criminal enterprise theories. In this framework, the issue is whether reliance on dolus eventualis in the context of joint criminal enterprise violates the principles of nullum crimen sine lege and in dubio pro reo.

100. In the Ojdanic Decision on Jurisdiction,²¹⁹ the Appeals Chamber recognised the existence of joint criminal enterprise as a mode of liability in customary law existing as early as 1992:²²⁰

     The Appeals Chamber was satisfied [in Tadic], and is still satisfied now, that the Statute provides, albeit not explicitly, for joint criminal enterprise as a form of criminal liability and that its elements are based on customary law.²²¹

101. A basis in customary law having been established, the Appeals Chamber in that case came to the conclusion that the notion of joint criminal enterprise did not violate the principle nullem crimen sine lege.²²²As the concept of dolus eventualis (or “advertent recklessness”) is clearly “required for the third form of joint criminal enterprise”,²²³ the same conclusion is applicable in the instant case. As joint criminal enterprise does not violate the principle of legality, its individual component parts do not violate the principle either.

102. The Appeals Chamber is also of the opinion that the Appellant is unable to rely upon the principle of in dubio pro reo in the instant case. As the Appeals Chamber has previously stated in the Ojdanic Decision on Jurisdiction:

     The interpretation of Article 7(1) given by the Appeals Chamber in Tadic … simply leave[s] no room for it. Insofar as concerns the question whether joint criminal enterprise is recognized in customary international law, the Appeals Chamber has no doubt that the application of the principle in dubio pro reo could help to resolve.²²⁴

103. The Appeals Chamber therefore concludes that, in the instant case, the use of dolus eventualis within the context of the third category of joint criminal enterprise does not violate the principles of nullum crimen sine lege and in dubio pro reo.
     E. Conclusion

104. In light of the foregoing, the Appeals Chamber concludes that the Trial Chamber’s factual findings support the Appellant’s liability for the crimes of persecutions, deportation and inhumane acts (forcible transfer)²²⁵ pursuant to the first category of joint criminal enterprise, and for the crimes of extermination and murder pursuant to the third category of joint criminal enterprise.
     VI. THE APPELLANT’S FIRST GROUND OF APPEAL: ALLEGED EXPANSION OF THE INDICTMENT

105. The Appellant presents three arguments under his first ground of appeal. The first argument is that the Trial Chamber erred by relying on “acts” originating from outside the time-period of the Indictment, in violation of an alleged understanding with the Prosecution.²²⁶ The Appellant’s second argument is that the Trial Chamber prevented him from contesting the alleged error during the proceedings at trial.²²⁷ His third argument is that the Trial Chamber impermissibly used his status as a commander as an aggravating factor in sentencing.²²⁸
     A. The Appellant’s “understanding” with the Prosecution

106. The Appellant contends that he had an “understanding” with the Prosecution, whereby no act, conduct or evidence prior to 30 April 1992 would be considered against him.²²⁹ He refers specifically to the Pre-Trial Conference of 10 April 2002²³⁰ during which the Trial Chamber considered the Appellant’s “Motion Objecting to the Form of the Third Amended Indictment.”²³¹ The Appellant objected inter alia to paragraph 27 of the Third Amended Indictment, which alleged that:

     [the] joint criminal enterprise came into existence no later than the establishment of the Assembly of the Serbian people in Bosnia and Herzegovina on 24 October 1991 and continued throughout the period of the conflict in Bosnia and Herzegovina until the signing of the Dayton Accords in 1995.²³²

     The Appellant notes that the Trial Chamber found that this modification constituted a “significant change” to the Indictment,²³³ compared to the Second Amended Indictment, which read:

     The criminal enterprise [in which the Appellant allegedly participated] came into existence prior to the declaration of the “Assembly of the Serbian People of Prijedor Municipality” of 17 January 1992 on the “joining” of “Serbian territories in Prijedor Municipality” with the “ARK”. From about 22 May 1992, the campaign escalated to include the destruction, in part, of the Bosnian Muslims and Bosnian Croats in Prijedor, as such, in particular their leadership. The enterprise existed at least until 30 September 1992.²³⁴

107. The Prosecution disputes the Appellant’s claim that an understanding was reached at the pre-trial conference of 10 April 2002, and notes the absence of specific references by the Appellant to the record demonstrating such an understanding.²³⁵ It argues that, at the pre-trial conference, it “explained that the events [prior to 30 April 1992] were relevant as a matter of evidence and need not be pleaded.”²³⁶

108. The Appeals Chamber notes that the transcript of the 10 April 2002 pre-trial conference reads in relevant part:

     The Trial Chamber: Then we may probably come to the last point of concern. Of course, it's also for the Defence to come with one or another point. But in paragraph 27, the former paragraph 20, apparently there is an exchange of dates. In the former version, under paragraph 20(A), it was alleged that the crime was committed prior to the declaration of the assembly of 17 January, 1992. And then, going on, “the enterprise existed at least until 30 September, 1992.” Now, we can read that the starting point is 24 October, and this needs some declaration, “this joint criminal enterprise continued throughout the period of the conflict in Bosnia-Herzegovina until the signing of the Dayton accords in 1995.” Here, for me, it seems to be, yes, a significant change of the period of time.²³⁷

     The Prosecution: Your Honour, this case is a smaller part of the Brdjanin /Talic and Krajisnik/Plavsic and eventually the Milosevic case. There is the joint enterprise, we say, throughout, that the whole period, from the evidence, began not later than the 1st assembly of the Serbian people, which was in October, and continued through until the end of the conflict enforced upon the participants by the Dayton accords. We're not suggesting that Stakic's part in it is any greater in the original indictment, but the enterprise we say is one enterprise, and that is the reason why it is now -- it's the same in all of the indictments. That's the period. Stakic played his part in that enterprise. We're looking for consistency, and that's the reason.²³⁸

     The Trial Chamber: … Not to be misunderstood, is it alleged that Dr. Stakic himself participated in the entire joint criminal enterprises during the entire time, or is it possible for the Office of the Prosecutor to limit within these dates, October 1991, Dayton 1995, the period of time where it's the alleged responsibility of Dr. Stakic?²³⁹

     The Prosecution: Your Honour, it is. That's a matter of evidence as opposed to pleading. Your Honour, we're alleging his participation in a single joint enterprise. So that's what's pleaded in the indictment. We're not for one moment suggesting that up until the Dayton accords Dr. Stakic was playing a part in it.²⁴⁰

     The Trial Chamber: Of course, one has to balance the interests I hear of the Office of the Prosecutor and the Defence, and to be honest, I wouldn't regard it as a question of evidence only; it's a question for which period of time the accused is held responsible, and to prepare his own Defence, I believe it's necessary…²⁴¹

     The Prosecution: If Your Honour looks at the counts, Your Honour will see the period. That's the period. That's the period for which we're holding him liable, so between the 30th of April, 1992, and the 30th of September, 1992. That's in the counts itself.²⁴²

109. It appears that a statement by the Trial Chamber (“I wouldn’t regard it as a question of evidence only”)²⁴³ is interpreted by the Appellant to mean that the “trial chamber clearly and unambiguously confirmed that any evidence beyond the [Indictment] period would be considered defective.”²⁴⁴ However, it is clear from the context that the question of the admissibility of evidence falling outside the scope of the Indictment was not actually addressed. Instead, the Trial Chamber was merely suggesting that a certain provision of the Indictment made it unclear what the Appellant was being charged with; in response, the Prosecution provided clarification by pointing to another provision of the Indictment. The Trial Chamber’s request for clarification of the charges did not constitute a ruling concerning the admissibility of evidence. Nor did the Prosecution’s statements concerning the proper interpretation of the Indictment suggest that no evidence would be introduced concerning events prior to 30 April 1992. To the contrary, the Prosecution explained that while it did not seek to charge the Appellant with criminal liability for events prior to 30 April 1992, it would seek to introduce evidence relating to certain prior events in order to place the charged conduct in its proper context within a continuing joint criminal enterprise.

110. The Appellant’s allegations concerning an “understanding” with the Prosecution are based on an erroneous interpretation of the trial record. The Appeals Chamber holds that the Appellant did not have an understanding with the Prosecution on this point. Accordingly, this sub-ground of appeal is dismissed.
     B. The Trial Chamber’s alleged reliance on “acts” outside the Indictment period

111. The Appellant contends that on the basis of the Indictment, the only criminal conduct at issue was that occurring between 30 April 1992 and 30 September 1992.²⁴⁵ The Appellant refers to the Trial Judgement, which provides that “the Indictment … covers the Municipality of Prijedor during a specific period (30 April 1992 to 30 September 1992)”.²⁴⁶ The Appellant submits that the Trial Chamber thus erred in law by considering “acts” from as early as 7 January 1992.²⁴⁷ He points to language in the Trial Judgement which states:

     Apart from noting here that immediately after 30 April 1992 the Accused moved from Omarska into an apartment in the town of Prijedor, the Trial Chamber will discuss the events of the period between 7 January 1992 and the end of September 1992 elsewhere in this Judgement as they form part of the Accused’s alleged criminal conduct (including alleged preparatory acts).²⁴⁸

112. Specifically, the Appellant claims that the Trial Chamber erred in admitting evidence concerning certain events which occurred prior to the Indictment period and which, he alleges, were not clearly alleged in the Indictment. These included the common goal and objective of 19 December 1991, the Serbian Assembly of 7 January 1992, the Appellant’s role and authority prior to 30 January 1992, and the claim of Witness Donia that the Serbian Assembly was “denounced by other political leaders.”²⁴⁹ He also challenges the admission of certain post-Indictment period evidence for the same reasons: (1) a January 1993 report authored by Simo Drljaca concerning the build-up of reserve police units in Prijedor Municipality from April-December 1992²⁵⁰; (2) a November 1992 document by Milan Kovacevic which includes instructions for establishing and issuing certificates to citizens wishing to leave Prijedor²⁵¹; (3) an undated interview with the Appellant in which he speaks, inter alia, about “the Muslims who were created artificially”²⁵²; (4) Witness Budimir’s evidence²⁵³; (5) a January 1993 document (Exhibit S269)²⁵⁴; (6) a CD-ROM presented by Ljubica Kovacevic (Exhibit D43)²⁵⁵; (7) an interview with the Appellant dated 13 January 1993 (Exhibits D92-99)²⁵⁶; and (8) an interview with Colonel Radmilo Zeljaja dated May 1994 (Exhibit S274).²⁵⁷

113. While the Prosecution agrees that an accused cannot be convicted for criminal acts falling outside the period of the Indictment, it submits that the Tribunal’s Rules and jurisprudence do not preclude the admission of evidence falling outside the period of the Indictment as long as this evidence is relevant to the charges against the accused.²⁵⁸ It specifically argues that Article 18(4) of the Statute, read with Rule 47(C), requires the Prosecution to state the material facts underpinning the charges in the Indictment, “but not the evidence by which such facts are to be proven.”²⁵⁹ It claims that the evidence cited by the Appellant in this ground of appeal – although it concerns events outside the Indictment period – is relevant to prove events properly falling within the Indictment period.²⁶⁰

114. With respect to the evidence concerning the pre-Indictment period, the Prosecution argues in the alternative that most of the acts in question were in fact pleaded in the Indictment.²⁶¹ As to Witness Donia’s claim concerning the Serbian Assembly, it notes that “there is no legal requirement to set out every aspect of a witness’s evidence in an Indictment.”²⁶²

115. The Appellant’s arguments under this ground of appeal raise two related questions : first, whether the Indictment was pleaded with sufficient particularity with respect to the facts in question; and second, whether the Trial Chamber erred in admitting the evidence in question. The Appeals Chamber will consider these questions in turn.
     1. Were the cited preparatory and post-Indictment period “acts” material facts that should have been pleaded in the Indictment?

116. The Appeals Chamber has stated that the question of whether an indictment is pleaded with sufficient particularity depends upon whether it sets out the material facts of the Prosecution case “with enough detail to inform a defendant clearly of the charges against him so that he may prepare his defence.”²⁶³ There is thus a clear distinction between the material facts upon which the Prosecution relies, which must be pleaded, and the evidence proffered to prove those material facts.²⁶⁴

117. The indictment must be read in its entirety when determining whether material facts have been pleaded. The Appeals Chamber has previously held 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.²⁶⁵

     (a) The pre-Indictment period “acts”

118. The Appellant contests the Trial Chamber’s reliance on the “common goal/objective 19 December 1991”²⁶⁶ which was expressed in the “Instructions” issued by the Main Board of the Serbian Democratic Party of Bosnia and Herzegovina and later adopted by the SDS Prijedor Municipal Board. The Appeals Chamber notes that a common purpose, design or plan is a material fact concerning the existence of a joint criminal enterprise and, as such, must be pleaded in the Indictment.²⁶⁷ In the instant case, the purpose of the joint criminal enterprise was clearly set out in paragraph 26 of the Indictment. Likewise, the evidence concerning the Serbian Assembly of 7 January 1992 (including Witness Donia’s evidence) also related to the establishment of the Common Purpose. Thus, all of these “acts” merely amount to evidence of a material fact already pleaded; they did not need to be pleaded separately. The “ Instructions” and the common goal or objective referred to therein constitute evidence of the material fact and therefore did not need to be pleaded.

119. The Appellant’s authority and role in the joint criminal enterprise during the Indictment period are evidently material facts,²⁶⁸ and these were clearly pleaded.²⁶⁹ However, his political role and public positions held prior to 30 April 1992 are not material facts because he has not been charged with any crimes relating to his role before the Indictment period. The events before the Indictment period described by the Prosecution’s evidence provide only context relating to the establishment of the joint criminal enterprise. The Appellant’s authority and role prior to 30 April 1992 did not therefore need to be pleaded in the Indictment.

     (b) The post-Indictment period “acts”

120. The Appeals Chamber finds that none of the post-Indictment period “acts” cited by the Appellant amount to material facts which must be pleaded. The January 1993 report prepared by Simo Drljaca on the developments of reserve police units is evidence going to the authority of the Appellant during the relevant period. The document by Milan Kovacevic dated November 1992 regarding certificates for departure from Prijedor as well as Exhibit D43 constitute evidence related to the alleged crimes of deportation and other inhumane acts (forcible transfer). The undated interview of the Appellant with British Channel 4 constitutes evidence going to the Appellant’s mens rea for the crime of persecutions. Witness Budimir’s testimony constitutes evidence related to the leadership structure in Prijedor. Exhibit S269 is evidence going to the change of leadership in the Municipality of Prijedor. Exhibits D92- 99 and Exhibit S274 are evidence going to the co-operation between the civilian and the military authorities in Prijedor.

121. The Appeals Chamber thus concludes that the material facts referred to by the Appellant were properly pleaded. The remainder of the “acts” referred to in fact constituted evidence, which did not need to be pleaded. Therefore the Appellant’s submission that the Appeals Chamber committed an error of law in relying on material facts not pleaded in the Indictment is dismissed.
     2. Did the Trial Chamber err in relying on evidence outside the scope of the Indictment?

122. As a general principle, the Appeals Chamber observes that the Trial Chamber did not commit any error of law in relying on evidence originating from outside the time-period of the Indictment. Indeed, the Trial Chamber pursuant to Rule 89 (C) has the discretion to admit any “relevant evidence which it deems to have probative value.”²⁷⁰ The specific question before the Appeals Chamber is whether the Trial Chamber abused its discretion in violation of Rule 89(C) by considering that evidence outside the scope of the Indictment had probative value.

123. The pre-Indictment period evidence includes the “Instructions” and the common goal or objective referred to therein, the “Appellant’s authority”, his political role held prior to 30 April 1992, the “Serbian Assembly of 7 January 1992” and Witness Donia’s evidence. The Appeals Chamber finds that the Trial Chamber did not abuse its discretion by relying on the evidence at issue insofar as it had probative value in defining the development of the Common Purpose which was in place during the relevant period of the Indictment as well as the role played by the Appellant during that period. The Appellant has not demonstrated that the Trial Chamber erred in concluding that the cited evidence had probative value to the case.

124. As regards the January 1993 report, the Appellant submits that the Trial Chamber relied on this report for “determining a planned build-up of reserve police officers that purportedly were utilised to effectuate the crimes charged against [the] Appellant”.²⁷¹ The Appeals Chamber finds that the relevant passage in the Trial Judgement clearly states that the report is considered only “[w]ith regard to the period relevant to the Indictment.”²⁷² Further, counsel for the Appellant himself unambiguously confirmed the relevance of this report to the period of the Indictment.²⁷³ Therefore, the Trial Chamber did not err in relying on it insofar as it was probative.

125. With regard to the document prepared by Milan Kovacevic as well as Exhibit D43, although these documents were issued after the period of the Indictment, they were clearly relevant to the alleged charges of deportation and forcible transfer, illustrating the manner in which deportations were carried out during the period of the Indictment. As a result, the Trial Chamber did not err in considering that these documents had probative value for the crimes charged.

126. As for the Appellant’s undated interview with British Channel 4 in which he speaks, inter alia, about “the Muslims who were created artificially”,²⁷⁴ the Appeals Chamber notes that the Trial Chamber relied on this statement in two contexts.²⁷⁵ The first is with regard to the mens rea of the crime of persecutions. The Trial Chamber relied inter alia on the “abusive and discriminatory remark that Muslims … were created artificially” to be “satisfied beyond reasonable doubt that the Accused had the intent to discriminate against non-Serbs … during the relevant time in 1992”.²⁷⁶ The second is with regard to the character of the Accused as that was considered in the sentencing section. The Trial Chamber found that the statement constituted evidence of the Appellant’s “real intentions and feelings” about Muslims during the period of the Indictment.²⁷⁷

127. The question to be answered by the Appeals Chamber is whether the Trial Chamber erred in relying on this post-Indictment period statement. Before answering that question, the Appeals Chamber will first consider the relevant statement in the context of the interview from which it was taken:

     Reporter:

     How would you explain to the people in England, to the audience in England, what has happened here over the last six months?

     Stakic:

     Firstly, I would like to greet viewers in England. For us here, the reports of the London press and television, and especially official London, are a kind of measure of the balance of powers in the world and the situation in the world. However, it is difficult to explain from here what is actually happening here to the people who live in England and on the island, who are an integral part of Europe, but who are nevertheless a little separated from Europe and are quite far from the Balkans. Those of us who have lived here for centuries, I mean the Serbs and the other peoples, I also mean the Muslims, who were created artificially, who were against the Serbs in the previous two wars, while the Serbs were on the side of the allies both times. And this was from the very beginning, in other words, not at the very end of the war. What should have been done…actually, a little more time should have been devoted to getting to know the spirit and mentality of this people. Both times, in both the world wars…previous wars, we Serbs with our broadmindedness forgave everything, all the crimes that were committed by the Ustashas, mobilised from among the Croatian people and the Muslim people…where we suffered more by their hand than by the hand of fascist Germany, where on Kozara alone, 14,000 children were killed.²⁷⁸

128. The Appeals Chamber first notes that the statement at issue appears within a broad historical remark made by the Appellant: there is no direct connection with the relevant period of the Indictment. However, the Trial Chamber did not abuse its discretion in assuming that an expression of ethnic or religious bias made by the Appellant during late 1992 was probative of his likely state of mind earlier that same year. Accordingly, the Trial Chamber did not err in relying on the statement to establish the Appellant’s intent for the crime of persecutions, nor in viewing it as probative of his character for sentencing purposes.

129. The Trial Chamber relied on the evidence of Witness Budimir to establish that “for a short period of time in 1992, most of the Crisis Staff members, including Dr. Stakic, wore uniforms and carried pistols, although there was no obligation to do so.”²⁷⁹ Similarly, the Trial Chamber relied on the evidence at issue to establish the structure and role in Prijedor of the National Defence Council as well as the competencies of the Crisis Staff during the period of the Indictment.²⁸⁰ Thus, Witness Budimir’s testimony related directly to the events alleged during the Indictment period, and the Trial Chamber did not err in relying on it.

130. With respect to Exhibit S269, the Appeals Chamber notes that the Trial Chamber admitted this exhibit into evidence because it was relevant to the date of the change of leadership in the Municipality of Prijedor.²⁸¹

131. Finally, as regards Exhibits D92-99 and Exhibit S274, although these documents were issued after the period of the Indictment, they were clearly relevant to establish the degree of co-operation between the civilian and the military authorities during the period of the Indictment. Therefore, the Trial Chamber did not commit any error in referring to it.

132. In conclusion, the Appellant’s submission that the Trial Chamber abused its discretion in violation of Rule 89(C) by referring to pre and post-Indictment period evidence is dismissed.
     C. Did the Trial Chamber prevent the Appellant from contesting “acts” outside the temporal scope of the Indictment?

133. The Appellant submits that the Trial Chamber did not allow him the opportunity to present his own evidence originating from outside the time-period of the Indictment,²⁸² and that it prohibited him from asking questions and calling witnesses related to this time-period.²⁸³ Specifically, the Appellant submits that the Trial Chamber restricted and curtailed his cross-examination of Dr. Donia, an expert witness called by the Prosecution, by stating the following:

     … all the parties should try to restrict comments and questions on the alleged time, April 1992, September 1992, and of course Prijedor and immediate surrounding areas.²⁸⁴… To conclude, I think I was quite clear in saying we have only a limited time of responsibility at stake here in our case. … And therefore, I have to ask you, concentrate yourselves first of all on this limited time and the limited area.²⁸⁵

134. The Appeals Chamber notes that the Appellant has not shown, by reference to either the trial record or the Trial Judgement, that the Trial Chamber prevented him from introducing relevant evidence.²⁸⁶ The only specific reference offered by the Appellant is the Trial Chamber’s statement in paragraph 927 that it was “convinced that [the Appellant] was determined and resolute”, despite the fact that some witnesses characterised the Appellant in a potentially conflicting manner. This assertion, however, discloses no error on the part of the Trial Chamber. As noted above, the Trial Chamber may determine which witness testimony is more credible “without necessarily articulating every step of the reasoning in reaching a decision on these points.”²⁸⁷ Further, this finding neither supports, nor is related to, the Appellant’s allegation that he was prevented from introducing relevant evidence.

135. As to the cross-examination of Witness Donia, the Appeals Chamber finds that the Appellant’s citations of the trial record are selective and misleading. A complete examination of the excerpt reveals that while the Trial Chamber did restrict the cross-examination of Witness Donia, it did not restrict it in such a manner as to enforce “its ruling in the time parameters and scope of the Indictment only on the defense”,²⁸⁸ as the Appellant alleges. The relevant passages of the disputed exchange are as follows:

     Counsel for the Appellant: …, Your Honour, I would like to confine the questions to the dates in the fourth amended indictment from April 30th, 1992, through September of 1992. However, other witnesses, and in particular Dr. Donia respectfully in his report, has gone beyond those areas. I believe for the Defence in order to show the situation and the tensions that we believe were existing and we believe Dr. Donia concurs were existing at that time in Prijedor, prior to April of 1992, and through September 1992, is relevant and imperative to obtain both a fair trial for Dr. Stakic and a complete understanding of the situation in that region. And I say this most respectfully, and I'm just looking for guidance. I can limit my questions, but just would like to know if that was the intent of the Court.²⁸⁹

     The Trial Chamber: To be very frank on this, I don't know whether, counsel, you are aware of the fact that the Trial Chamber already in the beginning asked the Office of the Prosecutor to show us some self-restraint as regards the time covered by this expert witness. And it's not only the time, also the region. Please be aware that we professional Judges regard this as part of, let's say, public domain, that there were overall tensions between the ethnic groups in the former Yugoslavia, and therefore, we really should -- all the parties should try to restrict comments and questions on the alleged time, April 1992, September 1992, and of course Prijedor and immediate surrounding areas. This was my point when you came to Celebici, for example. Thank you.²⁹⁰ …

     The Trial Chamber: To conclude, I think I was quite clear in saying we have only a limited time of responsibility at stake here in our case. You know this time, and you know the region. Of course, you can go to the surrounding areas. This is of some importance. But it was on purpose that I asked both parties in the beginning not to start history with the tribes in the 5th and 6th century. It doesn't make sense at all. And I said it quite clearly to the Office of the Prosecutor and the same is of course true for the Defence. And therefore, I have to ask you, concentrate yourselves first of all on this limited time and the limited area. And please, allow me one additional remark: As this is not a jury, I, as a Defence counsel, have always learned that it's more convincing to make some points and leave the evaluation to the Judges. Thank you. I think it's enough, and we should continue with the cross-examination now.²⁹¹

136. The clarification emphazised above makes clear that the Appellant was in fact permitted to cross-examine Witness Donia on matters outside the geographic and temporal scope of the Indictment, but was simply cautioned against extending this inquiry to irrelevant matters. In any event, the Appellant merely points to this exchange but does not show how this alleged error invalidates the Trial Chamber’s decision.

137. This sub-ground of appeal is accordingly dismissed.
     D. Pleading the Appellant’s status of commander as an aggravating circumstance

138. The Appellant alleges that the Indictment did not sufficiently inform him as to how his status as commander could be used as an aggravating circumstance in determining his sentence, and that he was therefore prevented from contesting this matter at trial.²⁹² He further submits that the Trial Chamber was “satisfied that the relationship between the police and the Municipal Assembly was one of co-operation, not subordination.”²⁹³ In light of this absence of a finding of a superior-subordinate relationship between the police and the Municipal Assembly, the Appellant submits that the Trial Chamber erred in law and fact when it utilised Article 7(3) as an aggravating factor.²⁹⁴

139. The Prosecution submits that the Appellant has “misconstrued the relevant jurisprudence ” and that his status as a commander constitutes a matter of evidence which does not need to be pleaded in an indictment.²⁹⁵ The Prosecution points to paragraphs 30, 31 and 38 of the Indictment and argues that the command role was “explicitly set out”.²⁹⁶

140. The Appeals Chamber notes that the Appellant was charged with crimes under Article 7(1) as well as Article 7(3). Since the Appellant’s command role is directly relevant to the nature of responsibility for the crimes charged under Article 7( 3), it constitutes a material fact, which must be pleaded in the Indictment.

141. The Appeals Chamber is satisfied that the Appellant’s command role was sufficiently pleaded in paragraphs 30, 31 and 38 of the Indictment, as follows:

     30. Milomir Stakic, while holding positions of superior authority is also individually criminally responsible for the acts or omissions of his subordinates, pursuant to Article 7(3) of the Statute of the Tribunal. Milomir Stakic, by virtue of his role as President of the Prijedor Crisis Staff and Head of the National Defence Council in Prijedor Municipality, had control and authority over the TO and police forces that participated in the crimes alleged in this Indictment.

     31. Milomir Stakic knew or had reason to know that all crimes alleged in this indictment were about to be committed or had been committed by his subordinates and he failed to take necessary and reasonable measures to prevent such acts or punish the perpetrators thereof. The accused is therefore criminally responsible under Article 7(3) of the Statute of the Tribunal.

     …

     38. Milomir Stakic whilst holding the positions of superior authority as set out in the foregoing paragraphs is also criminally responsible for the acts of his subordinates, pursuant to Article 7(3) of the Tribunal Statute. A superior is responsible for the acts of his subordinate(s), if he knew or had reason to know that his subordinate (s) were about to commit such acts or had done so and the superior failed to take the necessary and reasonable measure to prevent such acts or to punish the perpetrators thereof.

142. The Appellant’s further allegation that he should have been informed of how his command role might be used against him in sentencing is inconsistent with the jurisprudence of this Tribunal. The Appeals Chamber has previously found that “as a matter of principle, there is no requirement that the Prosecution plead aggravating factors in an indictment. Such a requirement is not reflected in the Statute or Rules of this Tribunal.”²⁹⁷

143. The Appellant’s appeal on this point is thus dismissed. The question of whether the Appellant’s superior position can be used as an aggravating factor in sentencing is examined below in the section on sentencing.
     VII. THE APPELLANT’S SECOND AND THIRD GROUNDS OF APPEAL: ALLEGED VIOLATIONS OF THE RIGHT TO A FAIR TRIAL AND MISCARRIAGE OF JUSTICE
     A. Alleged violations of the Appellant’s right to a fair trial

144. The Appellant’s second ground of appeal comprises a number of alleged factual and legal errors which, the Appellant claims, denied him a fair trial. Specifically, he submits that the Trial Chamber erred in: (1) denying the Appellant’s request to obtain expert witnesses²⁹⁸ and refusing to admit expert evidence on various topics²⁹⁹; (2) denying the Appellant’s motion for a mistrial based on violations of Rule 68 by the Prosecution³⁰⁰; (3) denying the Appellant the right to introduce Rule 92bis evidence³⁰¹; (4) admitting certain of the Prosecution’s Rule 92bis evidence³⁰²; (5) issuing Rule 91 warnings to Defence witnesses³⁰³; and (6) admitting “unreliable and untrustworthy” evidence.³⁰⁴ As a remedy, the Appellant requests that the Appeals Chamber reverse his convictions,³⁰⁵ grant him a new trial³⁰⁶ or substantially reduce his sentence.³⁰⁷
     1. Denial of the Appellant’s request to obtain expert witnesses and to admit expert evidence

145. The Appellant argues³⁰⁸ that the Trial Chamber abused its discretion and erred as a matter of law when it denied his request for funds to retain expert witnesses.³⁰⁹ He claims that the refusal of the Trial Chamber (1) violated the “principle of equality of arms,”³¹⁰ and (2) denied him “ the right … to adequately present [his] defence through experts.”³¹¹ He cites Articles 20 and 21 of the Statute, which guarantee the right to a fair trial and equality, in support of his argument.³¹² He then cites several judgements from the European Court of Human Rights to argue that a party must be given the opportunity “to make known any evidence needed for their claims to succeed”.³¹³ The Appellant also cites English and U.S. law for the proposition that opinions of experts are generally admissible in adversarial systems.³¹⁴

146. The Appellant maintains that the Trial Chamber unfairly allowed the Prosecution to call “at least 8 recognised experts and 3 quasi experts”, although only three were formally designated as experts, and it did not allow the Defence to do the same.³¹⁵ Similarly, he complains that during the trial, the Prosecution “promoted” certain fact witnesses as experts and the Trial Chamber “accepted” them “as possessing expertise.”³¹⁶

147. The Appellant submits that although he requested experts in seven fields, the Trial Chamber only granted him permission to call the history and military experts.³¹⁷ He argues that the experts he requested could have rebutted the Prosecution’s expert testimony, and that they therefore should have been permitted to testify.³¹⁸

148. The Prosecution responds that while it had proposed eleven experts, it only called three of them at trial. The Trial Chamber then directed the Prosecution to call two additional experts pursuant to Rule 98. The other witnesses in question, the Prosecution explains, testified as witnesses of fact, not as experts.³¹⁹ Furthermore, the Prosecution maintains that the Trial Chamber was correct in holding that the Appellant had failed to justify the introduction of expert testimony,³²⁰ and notes that despite this failure, the Trial Chamber permitted him two expert witnesses on the basis of the principle of equality of arms.³²¹

149. The Appeals Chamber notes that Article 21 of the Statute provides that “[a] ll persons shall be equal before the International Tribunal,” which has been interpreted to require an “equality of arms” between the parties.³²² The Appeals Chamber has found that the principle of equality of arms “goes to the heart of the fair trial guarantee.”³²³ While equality of arms does not mean that the Appellant is necessarily entitled to the same means and resources available to the Prosecution, it does require a judicial body to ensure that neither party is put at a disadvantage when presenting its case, particularly in terms of procedural equity.³²⁴ In assessing an equality of arms challenge by an accused, a judicial body must ask two basic questions: (1) was the Defence put at a disadvantage vis-à-vis the Prosecution, taking into account the “principle of basic proportionality” and (2) was the accused permitted a fair opportunity to present his case.³²⁵

150. At the same time, Rules 89(C) and (D) provide that the Trial Chamber may admit any relevant evidence which it deems to have probative value and may exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial. Rule 65ter(G) states that before the accused’s case is presented, the Pre-Trial Judge shall order the Defence to file a list of witnesses it intends to call, which includes, among other things, (a) the name or pseudonym of each witness (b) a summary of the facts to which each witness will testify and (c) the points in the indictment to which each witness will testify. The Trial Chamber is then called upon to make its discretionary ruling on whether or not to admit the expert testimony.³²⁶ Finally, under Rule 73ter(C), the Trial Chamber sets the number of witnesses the Defence may call after hearing the Defence and considering the file submitted to the Trial Chamber by the Pre-Trial Judge pursuant to Rule 65ter(L)(ii).

151. The Defence, in its 2 October 2002 Request for Approval of Defence Experts, asked the Trial Chamber to approve experts in seven areas.³²⁷ The Defence failed, however, to specify either the names of the proposed experts or an explanation as to what fact and point in the Indictment to which each expert would testify, as required by Rule 65ter(G). Instead, the Defence merely submitted that:

     The foregoing is requested in order to secure that Dr. Stakic obtains a fair trial and that the principle of equality of arms is adhered to pursuant to the Rules of Procedure and Evidence of the Tribunal. In addition, the rationale for seeking the approval of the foregoing is to objectively and specifically address issues raised in the 4th Amended Indictment as well as to rebut, clarify and supplement the ‘evidence’ offered by the OTP in their case in chief.³²⁸

152. The Trial Chamber approved two expert Defence witnesses pursuant to Rule 73ter – an historian and a military expert – and denied the five other requests for experts in constitutional law, demography, police practices, handwriting and journalistic ethics as “unsubstantiated.”³²⁹

153. The Appeals Chamber finds that this ruling was within the discretion of the Trial Chamber. Given the Appellant’s failure to comply with the requirements of Rule 65ter(G), the Trial Chamber’s conclusion that his requests for experts were unsubstantiated was correct.

154. On 8 November 2002, the Trial Chamber ordered the Defence to file, by 11 November 2002, the information required by Rule 65ter(G) with respect to all of the witnesses it planned to call during the remainder of 2002. It further ordered that information concerning witnesses the Defence intended to call between 8 January and 21 March 2000 be filed by 18 November 2002.³³⁰

155. Although the Appellant did not provide this information, the Trial Chamber again considered the Appellant’s requests for expert witnesses during a 25 November 2002 hearing. At this hearing, the Defence orally requested that the Trial Chamber reconsider its 8 October order limiting the Defence to two experts.³³¹ The Trial Chamber heard arguments on each of the experts it had denied, and confirmed its prior ruling. The Appellant now challenges the denial of each of the experts. The Appeals Chamber will consider his arguments in turn.

     (a) The handwriting expert

156. The Appellant contends that the Trial Chamber improperly assisted the Prosecution, first, by requesting retention of a handwriting expert, Mr. C.H.W. Ten Camp, under Rule 98 and second, by not allowing the Appellant to call his own handwriting expert to rebut Mr. Ten Camp’s testimony.³³² He maintains that Mr. Ten Camp himself testified that consultation with two handwriting experts was necessary in order to reach a reliable conclusion.³³³

157. Second, the Appellant argues that Mr. Ten Camp’s testimony was “deficient and unreliable” because he could only state that the signatures on crucial documents in question were “possibly” or “probably” those of the Appellant.³³⁴ He accordingly claims that because the Trial Chamber relied heavily on this evidence in its Judgement, the standard of proof beyond a reasonable doubt was not met.³³⁵ The Appellant claims that it had “consulted with” a handwriting expert, Jack Hayes, who, if called to testify, would have challenged the reliability and authenticity of the facsimile documents on which the Trial Chamber relied. He claims that with this testimony, the Trial Chamber could not have concluded beyond a reasonable doubt that the Appellant had authored those documents.³³⁶

158. The Trial Chamber denied the request for a second handwriting expert as it found that: (1) it was not correct that Mr. Ten Camp recommended a second expert and (2) the Defence had not demonstrated that Mr. Hayes would have superior knowledge or scientific methods.³³⁷ These conclusions are supported by the record, and the Appeals Chamber concludes that the refusal to allow a second handwriting expert was within the Trial Chamber’s discretion pursuant to Rules 65ter(G) and 73ter(C). Moreover, the Trial Judgement demonstrates that the Trial Chamber was aware of the limitations of Mr. Ten Camp’s testimony;³³⁸ there is no indication that the Trial Chamber gave his testimony as to the documents in question more weight than it merited. Because the Trial Chamber did not rely solely on these documents in order to determine the Appellant’s role in the relevant events, it is not necessary that the documents alone establish his guilt beyond a reasonable doubt. The Appeals Chamber can see no error in the Trial Chamber’s assessment, and this sub-ground of appeal is dismissed.

     (b) The police expert

159. The Appellant claims that although the Prosecution sought to hold him responsible for the acts or omissions of police personnel, the Prosecution did not establish that he had any authority over the police.³³⁹ He further argues that his Bosnian police expert, Dr. Dusko Vejnovic, would have shown that the Appellant and the “local civilian leadership of Prijedor” did not have control over the police forces because the police chain of command was instead controlled by “the Republican level Ministry of Interior Affairs”.³⁴⁰ The Appellant also points out that other Trial Chambers have appointed experts relating to the “unique make up of the Bosnian police.”³⁴¹

160. As a preliminary matter, the Appeals Chamber rejects the Appellant’s suggestion that discretionary decisions made by other Trial Chambers (to call police experts) were somehow binding on the Trial Chamber in this case. Judicial discretion can be defined as “the exercise of judgment by a judge or court based on what is fair under the circumstances and guided by the rules and principles of law.”³⁴² A Trial Chamber’s exercise of discretion, by definition, can and likely will vary from trial to trial depending on a variety of different factors.

161. The Appeals Chamber agrees with the Appellant that a police expert could have clarified the de jure relationship between the police and the military. However, it is not the de jure, but the de facto relationship between the civilian leadership and the police that was material to the question of effective control in this case.³⁴³ As the Trial Chamber’s conclusions would be unaffected by an explanation of the de jure relationship between the police and the civilian authorities, the Appeals Chamber finds that the Trial Chamber did not abuse its discretion in denying the request for a police expert, and this sub-ground of appeal is dismissed.

     (c) The constitutional law expert

162. Pursuant to Rule 92bis, the Trial Chamber, upon the Appellant’s request, admitted Professor Pavle Nikolic’s expert report on constitutional issues, which Professor Nikolic had prepared for another trial. The Appellant claims that the denial of his request to further develop aspects of that report through his own witness, so that it would relate specifically to Prijedor and the allegations against him, rendered his trial unfair.³⁴⁴

163. The Trial Chamber ruled that it did not need a constitutional law expert as it was within the competence of the Trial Chamber to determine the relevant legal questions at issue, which were (1) whether or not the principle of command responsibility embodied in Article 7(3) of the Statute enjoyed the status of customary international law in 1992; and (2) whether application of these principles would amount to a retroactive application of substantive criminal law.³⁴⁵

164. The Appeals Chamber agrees with the Trial Chamber that there was no justification for the introduction of expert testimony as to issues of international criminal law; the Trial Chamber was perfectly competent to pronounce on such issues without the assistance of a legal expert. To the extent that the Appellant sought to introduce expert testimony as to domestic constitutional issues such as the legal obligations of the Crisis Staff, it would have been within the Trial Chamber’s discretion to admit such testimony. However, particularly given that the Trial Chamber had already admitted, upon the Appellant’s request, the report of Professor Nikolic on these issues, it was reasonable for the Trial Chamber to conclude that it was not necessary to hear further expert testimony. Moreover, the Appellant had failed to provide a written explanation as to why the additional expert was needed, as required by the Rules, even after being specifically ordered to do so by the Trial Chamber. The Appeals Chamber concludes that the Trial Chamber did not abuse its discretion in denying the Appellant’s request, and this sub-ground of appeal is dismissed.

     (d) The demographer

165. The Appellant claims that when he attempted to rebut the evidence of the Prosecution’s demographer, Dr. Ewa Tabeau, the Trial Chamber denied his request to introduce an expert witness, and explicitly stated that it would not rely on Dr. Tabeau’s testimony. Contrary to this assurance, the Appellant claims that the Trial Chamber then “ based its finding of guilt, in part, on the evidence offered [by Dr. Tabeau].”³⁴⁶ He further claims that he was unfairly denied the opportunity to call his own expert demographer.

166. The Appeals Chamber notes that when the Trial Chamber asked the Appellant on 25 November 2002 whom he wished to call as a demographer, the Defence asked for two to three more weeks to provide the Trial Chamber with a name. The Trial Chamber then informed the Appellant that because this information had been due six months previously, as a part of its 65ter(G) motion, it would not delay proceedings any further. The Trial Chamber additionally pointed out that the Rules allowed the Appellant to raise the issue again at the end of the case, and the Trial Chamber would be required “to revisit this question.”³⁴⁷ In light of the ample opportunities the Trial Chamber provided to the Appellant to seek to call his own expert, and the Appellant’s failure to comply with the appropriate procedures, the Appeals Chamber sees no error in this regard on the Trial Chamber’s part.

167. The Appeals Chamber does not agree with the Appellant’s submission that the Trial Chamber explicitly stated that it would not rely on Dr. Tabeau’s testimony. While the Presiding Judge did indicate that he viewed demographic evidence as irrelevant to certain factual questions,³⁴⁸ his statement could not reasonably be understood by the Appellant to mean that the Trial Chamber would not refer at all to evidence offered by the demographer. The Trial Chamber specifically allowed a demographer to be called as a witness who could offer relevant evidence on the various charges. In the absence of a clear indication to the contrary, it was to be expected that the Trial Chamber would rely on that evidence to the degree it considered appropriate.

168. In light of the foregoing, the Appeals Chamber concludes that the Appellant has not shown that without reference to Dr. Tabeau’s report the Trial Chamber would have reached a different conclusion as to his culpability.³⁴⁹ The Trial Chamber did not err in refusing a Defence demographer and in relying on Dr. Tabeau, and this sub-ground of appeal is dismissed.

     (e) Expert called to rebut Witness Vulliamy

169. Edward Vulliamy, a British journalist who had been present in Prijedor municipality during 1992, testified as to certain events that took place there. The Appellant argues that although Witness Vulliamy was presented as a fact witness for the Prosecution, he actually testified as an expert witness. In support of this argument, he cites portions of the trial transcript in which Witness Vulliamy, in response to the Defence’s question of whether he was asked to be an expert witness, answered “Yes. I recall that it was my sort of label.”³⁵⁰

170. The Appellant then submits that Witness Vulliamy lacked expertise and misunderstood the Balkans because he could not speak B/C/S and thus received his information second -hand. He also argues that the Trial Chamber erred in denying his requests to call James Bisset, John Peter Maher and David Binder to “clarify the flaws of Mr. Vulliamy’s conclusions” concerning the widespread and systematic nature of the crimes, and that an acquittal or a new trial is thus required.³⁵¹ He further contends that Witness Vulliamy’s testimony was contradicted by an article that he had written on 7 August 1992 (introduced as Exhibit D25), and that by failing to address this article, the Trial Chamber violated the reasoned opinion requirement.³⁵² In addition, the Appellant also argues that he should have been permitted to introduce the transcripts of Professor Robert Hayden’s testimony in the Tadic trial on the “widespread and systematic ” issue.

171. The record makes clear that Witness Vulliamy’s comment regarding his status as an expert related not to this case, but to a discussion the Witness had had with the Prosecution concerning potential testimony in another case. His status as a potential expert in another case is irrelevant to the current appeal.³⁵³ In this case, he was listed as a fact witness and referred to by the Prosecution and the Trial Chamber as such. His testimony was thus not based on second-hand information, as alleged by the Appellant. Indeed, Witness Vulliamy testified that, among other things, he visited the Omarska and Trnopolje camps, viewed deportations, attended a meeting with the Crisis Staff, and interviewed the Accused himself for approximately an hour to an hour and a half in the Accused’s office at a health centre in Prijedor.³⁵⁴ While Witness Vulliamy’s introductory description of his background described in detail his substantial experience as a journalist, nowhere in the record did the Trial Chamber or the Prosecution refer to him as an expert witness.³⁵⁵ The Appeals Chamber therefore rejects the Appellant’s submissions on this point.

172. The Appeals Chamber also notes that Exhibit D25 – Witness Vulliamy’s 7 August 1992 article on Omarska and other detention camps – does not meaningfully contradict his testimony given at trial, contrary to what the Appellant contends in his reply.³⁵⁶ As the witness explained on cross-examination, after this article was published, he continued to receive information on further abuses in the Prijedor area, which changed his understanding as to the extent of the abuses in that region.³⁵⁷ As for the argument that the Trial Chamber was required to cite Exhibit D25 in order to give a reasoned opinion, the Appeals Chamber notes that a Trial Chamber has discretion to select which submissions merit detailed analysis in writing.³⁵⁸ The Trial Chamber may dismiss clearly unfounded arguments without providing detailed reasoning, as it did in this instance.³⁵⁹ The Trial Chamber, thus, did not err in failing to address Exhibit D25 in its Judgement.

173. The Trial Chamber denied the Defence’s oral request on 25 November 2002 for an expert to rebut Witness Vulliamy, finding that it was capable of assessing his testimony without the opinions of the proposed journalists who had never been to Prijedor.³⁶⁰ The Trial Chamber did not hear from any expert witnesses regarding the widespread and systematic nature of the attack, instead choosing to rely on numerous fact witnesses, including Witness Vulliamy, for its finding that the crimes committed were widespread and systematic.³⁶¹ While such an inquiry requires findings of both law and fact, the ultimate legal conclusion is to be drawn by the Trial Chamber.³⁶² The Appeals Chamber finds that the Trial Chamber acted within its discretion in deciding to rely solely on fact witnesses for its findings on this subject. The Appellant has not demonstrated any error which would invalidate the decision, and this sub-ground of appeal is dismissed.

     (f) The designation of Nicolas Sebire as an expert

174. Nicholas Sebire, an investigator with the Prosecution, testified as to the identification of bodies found in the Prijedor region. The Appellant claims that, although Witness Sebire was technically designated as a fact witness, the Prosecution “represented” him as an expert to the Trial Chamber, who “accepted and promoted Sebire as a bonafide expert” and cited his testimony throughout the Trial Judgement.³⁶³

175. During the trial, the Trial Chamber on one occasion referred to Witness Sebire as an expert when the Presiding Judge stated:

     [P]lease don't blame an expert witness [referring to Sebire] for … what was done …³⁶⁴

176. This statement was, subsequently, clarified by the Prosecution:

     Before I address the issue related to document signatures, can I briefly just address the Court’s comments regarding the witness yesterday. Mr. Sebire, as he made clear, did not come here as an expert on medical matters or on other matters of expertise. His job, which I think he has done a tremendous job of, is collecting over 20, 000 pages of documents and trying to organise them in some way that it would be presentable to a court of law.³⁶⁵

177. Five days later, on 9 September 2002, the Prosecution stated:

     I'm not aware of NGO exhumations in the area of Prijedor. They may have funded the state authorities, or provided assistance. But Mr. Sebire is the expert. He can tell us. I don't believe they are.³⁶⁶

178. Finally, on 27 September 2002, during cross-examination, the Defence asked Witness Sebire:

     Q. …but you’re not an expert in that area. Correct?

     A. That is correct. I am an investigator. I work for the Office of the Prosecutor. I am not an expert. My report only summarizes the work of people that was done by the Bosnian commission for tracing missing persons, archaeologists, and other colleagues from the OTP.

179. Thus, despite the one reference on 9 September 2002, the Appeals Chamber finds that it is clear from the trial record that the Trial Chamber was not misled or confused as to whether Witness Sebire was an expert. Clarifications were made both by the witness and the Prosecution as to his status and the Trial Chamber was aware that the witness was not an expert, and this sub-ground of appeal is dismissed.

     (g) Psychiatrist or criminologist

180. The Appellant submits that he is entitled to a new trial or a substantial reduction in his sentence because the Trial Chamber denied his request to tender evidence from either a forensic criminal analyst named Dr. Russler, or a psychiatrist or a neuropsychiatrist. He maintains that Dr. Russler would have testified to his state of mind and whether he held “a propensity or willingness” to commit the crimes for which he was convicted.³⁶⁷ He further claims that the fact that the Trial Chamber in the Dragan Nikolic case requested such an expert demonstrates that the Trial Chamber erred in not calling a similar expert here.³⁶⁸

181. The Prosecution responds that the Appellant had agreed with the Trial Chamber and dropped his request for a psychiatrist or criminologist in November 2002, with the possibility of re-applying for such expert testimony by showing that it was in the “interest of justice,” and that the Appellant never made such an application.³⁶⁹ It argues that the Appellant cannot compare his case to the use of an expert criminologist by the Trial Chamber in the Dragan Nikolic case because the Defendant in that case both admitted to his crimes and expressed remorse, neither of which the Appellant has done.³⁷⁰ The Prosecution again argues that the Appellant has not shown how or why the Trial Chamber’s decision was erroneous or an abuse of discretion.³⁷¹

182. The Appellant’s argument with respect to the proposed psychologist or criminologist fails because the Appellant himself dropped this request for expert testimony. During his trial, the Appellant decided not to pursue the admission of a psychiatrist or criminologist, and the Trial Chamber at the time noted that it may subsequently grant a request for additional time to present evidence if this is in the interests of justice, pursuant to Rule 73ter(F).³⁷² The Appellant declined to call an expert psychiatrist or criminologist to testify, and did not later avail himself of the remedy expressly referred to and offered by Rule 73ter(F). The Appellant has not demonstrated why in these circumstances the Trial Chamber abused its discretion, and this sub-ground of appeal is dismissed.
     2. Alleged violations of Rule 68 by the Prosecution

183. The Appellant submits that after the conclusion of the Prosecution’s case, the Prosecution disclosed excerpts from over thirty witness statements pursuant to Rule 68 which included “significant exculpatory material” that “contradicted the evidence and arguments advanced by the Prosecution.”³⁷³ The Appellant further argues that the Prosecution had this material prior to trial, but did not turn it over despite his requests to do so.³⁷⁴ He claims that without access to this undisclosed material, he was denied the opportunity to confront witnesses and could not properly prepare for trial.³⁷⁵

184. In response, the Prosecution argues that although there was a Rule 68 violation,³⁷⁶ the Trial Chamber considered all of the relevant facts surrounding the violation in its decision on the Appellant’s 15 November 2002 motion for a mistrial.³⁷⁷ In that decision, the Trial Chamber recognised a “serious violation of Rule 68”, but concluded that the Prosecution’s late disclosure would not have affected its Rule 98bis Decision for a Judgement of Acquittal.³⁷⁸

185. The Trial Chamber also ruled that any prejudice to the Appellant from this violation could be cured by allowing him to call or recall any witness after demonstrating to the Trial Chamber that he would have presented his case differently had he had access to the disclosed material.³⁷⁹ The Prosecution claims that the Appellant was only interested in six witnesses out of those covered by its late disclosure – Vojo Pavicic, Ranko Travar, Slavko Budimir, Slobodan Kuruzovic, Simo Miskovic and Srdo Srdic – three of whom testified at trial (Witnesses Travar, Budimir and Kuruzovic).³⁸⁰ The Prosecution also points out that the Defence recalled two Prosecution witnesses – Muharem Murselovic and Nusret Sivac – as a result of the Trial Chamber’s ruling.³⁸¹

186. The Appellant replies that “the Prosecution to this day has not produced any Rule 68 materials in its possession of … alleged co-perpetrators such as Simo Drljaca, Milan Kovacevic, Colonel Vladimir Arsic, and Major Radmilo Zeljaja,” and states that the Krstic Appeal Judgement requires “strict compliance with disclosure obligations.”³⁸² As to this specific submission, the Appeals Chamber refers to its Decision of 20 July 2004 in which it decided that this is not a permissible ground of appeal as it was raised for the first time only in the Appellant’s Reply Brief.³⁸³

187. The Appeals Chamber notes that Rule 68(i) provides that:

     The Prosecutor shall, as soon as practicable, disclose to the Defence any material which in the actual knowledge of the Prosecutor may suggest the innocence or mitigate the guilt of the accused or affect the credibility of Prosecution evidence.³⁸⁴

188. The disclosure of Rule 68 material “is fundamental to the fairness of proceedings before the Tribunal, and considerations of fairness are the overriding factor in any determination of whether the governing Rule has been breached.”³⁸⁵

189. The Prosecution concedes that it violated Rule 68 in this case.³⁸⁶ However, to show that the Trial Chamber erred with regard to its Rule 68 rulings, the Appellant must demonstrate that his case suffered material prejudice as a result.³⁸⁷

190. As the rules regarding sanctions are discretionary, not mandatory, in the absence of prejudice to the Appellant, the Appeals Chamber cannot say that the Trial Chamber abused its discretion in not sanctioning the Prosecution for these violations. The Appeals Chamber does note, however, that the Rules do not require a showing of malice before sanctions may be imposed, contrary to the assertions of the Prosecution.³⁸⁸

191. In the Krstic Appeal Judgement, this Chamber found that allowing the Appellant to admit additional evidence on appeal under Rule 115 was a sufficient cure to Rule 68 violations by the Prosecution.³⁸⁹ The Appeals Chamber held accordingly that the Appellant in that case had been provided a fair trial.

192. Likewise, the Trial Chamber in Furund‘ija held that reopening proceedings on issues related to a specific witness was adequate to ensure a fair trial following a breach of Rule 68.³⁹⁰ Similarly, after concluding that Rule 68 had been violated, the Trial Chamber in this case allowed the Appellant to re-examine any witnesses already called by the Prosecution where the Defence could demonstrate that it would have put different questions to that witness on cross-examination if it had had access to the improperly withheld material. The Appellant accordingly requested that the Trial Chamber summon three additional witnesses and recall two Prosecution witnesses.³⁹¹

193. Because the Appellant does not specify how he was prejudiced by the Rule 68 violation, and in light of the steps taken by the Trial Chamber, the Appeals Chamber finds that the Rule 68 violations were cured and that the Trial Chamber did not err in denying the Appellant’s motion for a mistrial.
     3. Denial of the Appellant’s attempts to introduce Rule 92bis evidence

194. The Appellant submits that the Trial Chamber erred in not admitting nine witness statements on 17 February 2003 pursuant to Rule 92bis. The Trial Chamber declined to admit these statements as it found the evidence to be repetitive or not relevant.³⁹² The Appellant claims these rulings were erroneous for four reasons: (1) the Prosecution did not object to their admission; (2) certain of the statements were relevant and non-repetitive – specifically, those offered to rebut Dr. Slavko Tomic’s testimony on mens rea and Milorad Loncar’s testimony on unwillingness and inability to assist others ; (3) evidence can be admitted under Rule 92bis “precisely because it [i]s cumulative”³⁹³; and (4) the nine proposed witness statements related to issues regarding the credibility of other witnesses.³⁹⁴

195. The Prosecution responds that the Appellant’s argument that these witness statements would have addressed the credibility of other witnesses was not presented at trial, and hence the Trial Chamber cannot be faulted for failing to consider this reason.³⁹⁵ Instead, it claims, the Appellant offered the statements, which were “in part [from] family members of Dr. Stakic”³⁹⁶ on the issues of “cumulative evidence”, “character … and reputation of Dr. Stakic ” and “mitigation.”³⁹⁷ It points out that the Trial Chamber specifically stated that Stakic’s character and reputation were not controversial as “many Prosecution witnesses”³⁹⁸ provided testimony similar to that of Defence witnesses, and that – citing the Kunarac Appeal Judgement³⁹⁹ – these factors were not accorded “undue weight given the severity of the crimes”.

196. Rule 92bis states that “a Trial Chamber may admit, in whole or in part, the evidence of a witness in the form of a written statement in lieu of oral testimony which goes to prove a matter other than the acts and conduct of the accused as charged in the indictment.” The Appellant’s first argument, that the Trial Chamber erred in denying the admission of certain Rule 92bis evidence simply because the Prosecution did not object, is unfounded; the plain language of the Rule gives to the Trial Chamber the discretion to decide whether to admit such statements.

197. The Appellant’s second argument is that written statements on the issue of the Accused’s mens rea should have been admitted pursuant to Rule 92bis because they were relevant and non-repetitive. As he offers essentially no reasoning on this point in his brief, the Appeals Chamber considers that the Appellant has not demonstrated that the Trial Chamber abused its discretion in determining that the relevant evidence did not meet the criteria for admission under Rule 92bis.

198. The Appellant’s third argument – that certain evidence should have been allowed pursuant to Rule 92bis because it was cumulative – is also unavailing. First, the language of the Rule is merely permissive (the Trial Chamber “may admit”), thus leaving the decision to admit cumulative evidence to the discretion of the Trial Chamber. More importantly, the purpose of Rule 92bis is to promote efficiency and expedite the presentation of evidence while adhering to the requirements of a fair trial, not to encourage duplication of testimony which would unnecessarily delay proceedings.

199. The Appellant’s fourth and final argument – that the proposed witness statements should be admitted under Rule 92bis because they would support the credibility of other witnesses – is not properly before the Appeals Chamber as it was not raised before the Trial Chamber. The Appellant has thus waived his right to make this argument.⁴⁰⁰ During the trial, the Appellant argued that the Rule 92bis statements should be allowed “specifically on three issues: … cumulative evidence … character … and reputation … [and] mitigation ;” he did not mention the credibility of other witnesses.⁴⁰¹ Because arguments may not be made de novo before this Chamber, this sub-ground of appeal is dismissed.
     4. Alleged improper admission of the Prosecution’s Rule 92bis evidence

200. The Appellant argues that the Trial Chamber erred when it relied “exclusively ” on sixteen of the Prosecution’s Rule 92bis statements to prove the “acts and conduct” of the Accused, in violation of the clear terms of the Rule.⁴⁰² These sixteen statements, he argues, include evidence from Witnesses AA, E, F, H, I, K, M, N, T and Y, and evidence from Kerim Mesanovic, Pero Rendic, Elvedin Nasic, Mustafa Mujkanovic, Karim Jasic and Dzemel Deomic.⁴⁰³ He claims that the introduction of this evidence violated his right to a fair trial and that, had the Trial Chamber not admitted this evidence, it would not have reached the same decision or imposed a sentence of life imprisonment.⁴⁰⁴ The Prosecution submits that these Rule 92bis statements were used to corroborate other evidence relied on by the Trial Chamber, and not to prove the “acts and conduct ” of the Appellant.⁴⁰⁵

201. A review of the Trial Chamber’s findings reveals that the evidence from each Rule 92bis witness was used to establish the context of the crimes, rather than the acts and conduct of the Appellant:

     (1) Evidence from Witness I corroborates other evidence that non-Serb houses were marked by a white cloth,⁴⁰⁶ that women were raped in the Trnopolje camp,⁴⁰⁷ and that killings occurred in Biscani.⁴⁰⁸

     (2) Evidence from Witness F supports other testimony that there was an ultimatum issued to the town of Kozarac,⁴⁰⁹ that women were raped in the Trnopolje camp,⁴¹⁰ and that Muslim and Croat houses in Kozarac were targeted for destruction.⁴¹¹

     (3) Evidence from Witness H was used to corroborate other testimony that described the conditions in the Omarska camp,⁴¹² including sexual abuse that took place there.⁴¹³ Evidence from this witness also supports a finding that rape was committed in the Keraterm camp.⁴¹⁴

     (4) Evidence from Witness Y supports other testimony that individuals were grossly mistreated and killed in the Keraterm camp.⁴¹⁵

     (5) Evidence from Witness E supplements evidence on the 24 July 1992 “Room 3 massacre ” at the Keraterm camp, including names of individuals killed. This testimony also supports other evidence that 120 people were killed in the Omarska camp on 5 August 1992.⁴¹⁶

     (6) Evidence from Witness T corroborates other evidence that 44 people were taken out of the Omarska camp and told they would be exchanged, but were later found dead from gunshot wounds in Jama Lisac.⁴¹⁷ Witness T’s testimony also supplements other evidence that witnesses were beaten at the Omarska camp during interrogations, including in the “White House,” and other evidence on the destruction of Kozarusa.⁴¹⁸

     (7) Evidence from Witness K supports other evidence regarding mistreatment of prisoners in the Keraterm camp.⁴¹⁹

     (8) Evidence from Witness M supports a finding that 77 Bosnian Croats were killed in Brisevo in July 1992.⁴²⁰ This is the only evidence cited to support this finding.

     (9) Evidence from Witness N was cited to describe a mine pit in Ljubija that was cordoned off by the Serbs.⁴²¹

     (10) Evidence from Witness AA supports other evidence that the Prijedor Catholic church was blown up by soldiers and police on 28 August 1992.⁴²²

     (11) Evidence from Kerim Mesanovic supplements evidence on the conditions in the “White House” at Omarska.⁴²³ Kerim Mesanovic also offered testimony on the beatings in the courtyard of the detention cells in the SUP building in Prijedor.⁴²⁴ His is the only evidence cited for the latter finding.

     (12) Evidence from Pero Rendic supplements other evidence as to the food served at the Omarska camp.⁴²⁵

     (13) Evidence from Elvedin Nasic supports other evidence as to detentions and beatings at the Miska Glava Community Centre.⁴²⁶

     (14) Evidence from Mustafa Mujkanovic corroborates other evidence identifying individuals who were killed at the Trnopolje camp.⁴²⁷

     (15) Evidence from Karim Jasic supplements other evidence on the restrictions of media available to residents of Prijedor during the summer of 1992.⁴²⁸

     (16) Evidence from Dzemel Deomic supplements evidence in Section I.E.4(d) of the judgement that detainees in the Omarska camp were beaten during interrogations.⁴²⁹

202. It is evident that none of the evidence admitted pursuant to Rule 92bis went to the “acts and conduct” of the Appellant as charged in the Indictment. Therefore the Trial Chamber did not err in admitting the statements pursuant to this Rule. This sub-ground of appeal is accordingly denied.
     5. Rule 91 warnings to Defence witnesses

203. Rule 91(A) states that “[a] Chamber, proprio motu or at the request of a party, may warn a witness of the duty to tell the truth and the consequences that may result from a failure to do so.” During the Trial, the Presiding Judge issued numerous Rule 91 warnings.⁴³⁰ The Appellant argues that the Trial Chamber improperly issued Rule 91 warnings to several witnesses including Mico Kos, Nada Markovski, Borislavka Dakic, Milovan Dragic and Stoja Radakovic based on “improper inferences drawn from the prosecution’s evidence.”⁴³¹ The result, he argues, was to curtail the testimony of certain unspecified witnesses as they sought to avoid “further harassment, ridicule and embarrassment.”⁴³²

204. In response, the Prosecution argues that the Appellant’s claims are vague except with respect to Witness Kos.⁴³³ The Prosecution argues that the Presiding Judge did not rely on inferences from other witnesses’ testimony, but rather considered whether each individual witness was “inherently contradictory, implausible or clearly evasive,” and issued warnings only for such legitimate reasons.⁴³⁴ Finally, the Prosecution argues that Rule 91 warnings are discretionary, and that the Appellant has not shown that the Trial Chamber abused its discretion.⁴³⁵

205. In general, Rule 91(A) gives the Trial Chamber broad discretion to warn of the duty to tell the truth, and does not limit the circumstances under which it may do so. Barring unusual circumstances – such as repeated warnings given to a witness without apparent justification, in a manner that a witness might reasonably find intimidating – a simple statement of this basic duty does not constitute ridicule or harassment of a witness, nor does it compromise an accused’s right to a fair trial. Here, upon a close reading of the trial record, it is clear that in each case, the warnings were based on testimony that either appeared implausible or contradicted earlier testimony by the same witness.⁴³⁶ A warning in such a context is perfectly appropriate, and the Appeals Chamber sees no error.
     6. Admission of “unreliable and untrustworthy” evidence

     (a) “Unreliable” evidence

206. The Appellant argues that the Trial Chamber erred in relying on the testimony of several of the Prosecution’s fact witnesses.⁴³⁷ Without further explanation, he asserts that their testimony was “unreliable, erroneous, and based upon hearsay or mere speculation and conjecture”.⁴³⁸ The Appellant attempts here to retry an aspect of its case before the Appeals Chamber. It is settled jurisprudence of the Tribunal that the trier of fact is best placed to assess the demeanour of a witness and the entirety of the evidence. As such, the Appeals Chamber defers to a Trial Chamber’s findings of fact if they are reasonable.⁴³⁹ As the Appellant has made no attempt to explain his argument or to demonstrate an error occasioning a miscarriage of justice, this sub-ground of appeal can be dismissed without further discussion.

     (b) Evidence concerning Milorad Stakic

207. The Appellant submits that the Trial Chamber erred in admitting “improper comments and innuendos” to suggest that his brother, Milorad Stakic, was a driver at the Omarska Camp, when the Prosecution knew that, in fact, the driver was an unrelated person who shared his brother’s name.⁴⁴⁰ He also claims that the Trial Chamber erred by failing to sanction the Prosecution for this misleading suggestion.⁴⁴¹

208. The Prosecution responds that it was not improper for it to question Witness Vuleta⁴⁴² on whether the Appellant’s brother, Milorad, worked in the iron ore mine at Omarska, even though the Prosecution had information that Milorad was living in Germany during the time in question. It maintains its line of questioning was “necessary to verify the information” and that Judge Schomburg’s follow-up questions cleared up any possible confusion that may have resulted.⁴⁴³

209. During the trial, the Prosecution questioned defence Witness Vuleta on whether Mico Stakic, who was a driver at the Omarska camp, was the same person as the Accused’s brother, Milorad Stakic. While there was initially a degree of confusion, the trial transcript shows that the Trial Chamber clarified that the witness knew a driver at Omarska named Mico, but that the Accused’s brother, Milorad, was a different person who was living in Germany at the relevant time.⁴⁴⁴ As the Trial Chamber did not mention this issue in its Trial Judgement, and there is no evidence of bad faith on the part of the Prosecution, the Appeals Chamber concludes that the Trial Chamber did not err in allowing this line of questioning.

     (c) Evidence on the Appellant’s flight from Prijedor

210. The Appellant argues that the Trial Chamber erred when it allowed the Prosecution to introduce evidence “by way of implication and innuendo” that he had fled to Prijedor after the Indictment against him was issued.⁴⁴⁵ He claims that his evidence that he had chosen to relocate to complete his medical specialisation was more persuasive than the Prosecution’s evidence at trial that he fled to evade arrest following the Indictment.⁴⁴⁶

211. In response the Prosecution claims that it did not allege that the Appellant fled because of his indictment, but because he knew that there had been an attempt to arrest his alleged co-perpetrator Simo Drljaca. It further points out that the Presiding Judge stated that the Appellant’s decision to move to Belgrade was irrelevant and that the Trial Judgement made no reference to the purported “flight.”⁴⁴⁷

212. As to whether questioning the Appellant about his move to Belgrade precluded the Trial Chamber from drawing a reasoned opinion as to his guilt, the Appeals Chamber notes first that there is no basis for holding that the Trial Chamber erred in allowing evidence that the Appellant had fled to Prijedor.⁴⁴⁸ Second, the Appeals Chamber observes that there is no discussion of the Appellant’s move to Belgrade in the Trial Judgement, and therefore finds the argument that the Trial Chamber was prejudiced by this evidence to be unpersuasive. Further, the nature of the prejudice purportedly caused to the Appellant is not clearly outlined in his submissions. This sub-ground of appeal is denied.
     B. Allegation that the Trial Chamber drew impermissible inferences, and thereby caused a miscarriage of justice
     1. Submissions of the Parties

213. The Appellant argues that the Trial Chamber “drew impermissible inferences from circumstantial evidence” regarding his state of mind and degree of knowledge of the crimes being committed in the prison camps, “on the battlefield” and in the municipality in general.⁴⁴⁹ He claims that these errors invalidate all of his convictions.⁴⁵⁰

214. The Appellant submits that under Article 21(3) of the Statute, as interpreted by the Vasiljevic, Tadic and Krnojelac Appeal Judgements, if the only evidence of an accused’s mental state is circumstantial, an inference of guilt should only be drawn when it is the only reasonable inference that can be drawn from the evidence.⁴⁵¹ He maintains that if a reasonable inference consistent with innocence can be drawn, then that inference must be drawn.⁴⁵² He argues that the Trial Chamber’s Judgement is illogical as some of its factual findings do not support its findings of mens rea for Counts 4, 5 and 6.⁴⁵³

215. Specifically, the Appellant claims that the evidence does not support the inference that he knew of the conditions in the detention camps, the crimes committed there, or the fact that any deaths (other than two from natural causes) occurred there.⁴⁵⁴ He argues that several witnesses testified that he had no role in the police or the military, which controlled the camps, and that Police Chief Simo Drljaca kept the conditions in the camp a secret and reported only to the authorities in Banja Luka.⁴⁵⁵ In addition, the Appellant contends that the circumstantial evidence did not support the inference that he knew about the massacres of detainees taken from convoys in the region of Mount Vlasic.⁴⁵⁶

216. The Appellant also contends that the Trial Chamber erred in finding that he agreed to the consolidation of Serbian control in Prijedor in order to achieve the common goal of separating Serbs from the other two national communities.⁴⁵⁷ He submits instead that the threat that Bosnian Muslim forces would take over JNA personnel and materiel more reasonably explains the evidence of the Serbian take -over of Prijedor than does the explanation that the Serb leadership desired an all-Serbian state.⁴⁵⁸ He also argues that the Trial Chamber, in deriving this inference, failed to consider other reasonable inferences, namely that a reasonable person in his position (1) could have participated in the civil war that began well before the take-over of Prijedor, and (2) could have been in favour of the creation of a Bosnian Serb state without harbouring the intent to persecute non-Serbs.⁴⁵⁹

217. The Appellant challenges the Trial Chamber’s interpretation of specific evidence on which it relied to conclude that a common criminal goal existed. He argues that because the document entitled “Instructions for the Organization and Activity of Organs of the Serbian People in Bosnia and Herzegovina in Extraordinary Circumstances ”, issued by the Main Board of the SDS, did not discuss the segregation of ethnic groups, it did not support a finding of a common criminal goal to separate the Serbs from the other ethnicities.⁴⁶⁰ He also submits that because Radovan Karadzic’s speech supporting the take-over in Prijedor was given on 12 May 1992, it could not be considered in the determination of his state of mind on 29 April 1992.⁴⁶¹ Last, he argues that the Trial Chamber’s finding that “all participants were aware of where the decision to take over power would lead” is an “illogical leap” that violates the presumption of innocence and the required burden of proof.⁴⁶² He maintains that no evidence has been proffered by the Prosecution as to his direct or indirect knowledge of the alleged crimes⁴⁶³ or the intentions of his co-conspirators.⁴⁶⁴

218. The Prosecution counters that the Appellant’s challenge to the reasonable doubt standard is irrelevant, as his conviction was not premised on “inferences” from circumstantial evidence, but on an evaluation of documentary evidence and witness testimonies.⁴⁶⁵ It maintains that, based on the totality of the evidence, the Trial Chamber could come to no other reasonable conclusion but that the Appellant knew of the mass killings in the camps and in Prijedor Municipality, which provides the mens rea for his convictions.⁴⁶⁶ It then submits that the Trial Chamber’s finding that he could not have remained unaware of the killings was sufficient to find mens rea for murder pursuant to Article 3.⁴⁶⁷ The Prosecution thus maintains that the Appellant has shown no error of law sufficient to invalidate the Trial Judgement, nor any error of fact sufficient to result in a miscarriage of justice.
     2. Discussion

219. A Trial Chamber may only find an accused guilty of a crime if the Prosecution has proved each element of that crime (as defined with respect to the relevant mode of liability) beyond a reasonable doubt.⁴⁶⁸ This standard applies whether the evidence evaluated is direct or circumstantial.⁴⁶⁹ Where the challenge on appeal is to an inference drawn to establish a fact on which the conviction relies, the standard is only satisfied if the inference drawn was the only reasonable one that could be drawn from the evidence presented.⁴⁷⁰ In such instances, the question for the Appeals Chamber is whether it was reasonable for the Trial Chamber to exclude or ignore other inferences that lead to the conclusion that an element of the crime was not proven.⁴⁷¹ If no reasonable Trial Chamber could have ignored an inference which favours the accused, the Appeals Chamber will vacate the Trial Chamber’s factual inference and reverse any conviction that is dependent on it.⁴⁷²

220. The Appellant challenges the inferences drawn to support his convictions under Counts 4, 5 and 6. The Appeals Chamber thus must ask whether, for each count, a reasonable Trial Chamber could have found the relevant inferences consistent with the Appellant’s guilt to be the only reasonable inferences it could draw from the evidence. For each of the three counts, the Appellant argues that alternative reasonable inferences should have been drawn from the evidence to the effect that (1) there was no common goal to consolidate Serbian control in Prijedor, and the Appellant in any event did not share the intent to participate in such a common goal; and (2) the Appellant was unaware of the various crimes committed.

     (a) The existence of a Common Purpose and the Appellant’s participation therein

221. As set out above in the section on joint criminal enterprise, the Appeals Chamber is satisfied that the Trial Chamber’s factual findings support the conclusion that there was a Common Purpose to establish Serbian control in the Municipality of Prijedor through persecutions, deportations and forcible transfer. The Appellant argues, however, that the Trial Chamber could reasonably have inferred from the evidence that he desired the creation of a Bosnian Serb state without participating in the Common Purpose. The Appeals Chamber, cognisant of its decision to examine the Appellant’s guilt through the mode of liability of joint criminal enterprise, considers that the Appellant’s arguments on the inferences drawn by the Trial Chamber concern the question of whether the Appellant sought to further the Common Purpose.

222. The Appeals Chamber has already held that it considers that the findings of the Trial Chamber clearly demonstrate that the Appellant acted in furtherance of the Common Purpose and played an important role in it.⁴⁷³ Furthermore, the Appeals Chamber has stated supra that the Appellant shared the intent of the joint criminal enterprise to further the Common Purpose and the crimes underlying it.⁴⁷⁴

223. In concluding that the Appellant was one of the “main actors in the persecutorial campaign”⁴⁷⁵ the Trial Chamber relied on the existence of the Common Purpose,⁴⁷⁶ the fact that the camps were established by a decision of the Crisis Staff, and various interviews. The Trial Chamber relied on this evidence to conclude that the Appellant was fully aware of the mass killings being committed in the detention camps, and of the conditions in these camps.⁴⁷⁷

224. The Trial Chamber’s conclusion that this evidence left no reasonable doubt as to the Appellant’s participation in the Common Purpose was a reasonable one. The evidence clearly points to the existence of a goal to ethnically cleanse the Municipality of Prijedor through a campaign of persecution, and demonstrates that this goal was met through the perpetration of criminal acts against non-Serbs. It also clearly demonstrates the Appellant’s intent to participate in the joint criminal enterprise aimed at achieving this goal. The Appellant’s suggested alternative inference – that he desired to create a Bosnian Serb state without persecuting non-Serbs – is not reasonable on the facts, nor is it logically persuasive. Assuming that a “Bosnian Serb state” requires at least a majority of Bosnian Serb inhabitants, it is difficult to see, particularly in the context of this case, how such a state could be created without uprooting Muslims and Croats from their homes against their will.

225. Furthermore, the Appeals Chamber finds that the Appellant misconstrues the Trial Chamber’s findings with respect to Radovan Karadzic’s speech. The Trial Chamber stated that the common goal of Serb domination in Prijedor – as demonstrated by the Instructions and the decision to join the Autonomous Region of Krajina with Prijedor – “found its vibrant expression in Radovan Karadzic’s six strategic goals …”.⁴⁷⁸ This does not suggest that the Trial Chamber relied on the speech as evidence of the Appellant’s mens rea, but rather that it reflected the Common Purpose, or was an expression of it. Indeed, the Trial Chamber explicitly stated that “[b]y the time Karadzic set out these goals, preparations were already underway for the fulfilment of the first goal” of separating the Serbs from the other national communities.⁴⁷⁹

226. The Appeals Chamber notes that the Appellant suggests a further alternative inference to explain the Serb’s take-over of Prijedor – a feared Bosnian Muslim attack. Even if such an inference was reasonable, which it is not necessary to decide here, it would in no way negate the evidence that led the Trial Chamber to conclude that there was a Common Purpose. At most, it may be informative as to part of the motive underlying the Common Purpose, but it does not undermine the inferences drawn from the evidence above.

227. The Appeals Chambers accordingly dismisses the submissions on this point.

     (b) The Appellant’s awareness of the crimes committed

228. With respect to the crimes of extermination, murder and persecutions (Counts 4, 5 and 6 respectively), the Appellant submits that a reasonable Trial Chamber could have inferred that, during the time-period relevant to the Indictment, the Appellant was unaware of these crimes being committed and that he therefore did not have the requisite mens rea.

229. The Appeals Chamber has established above that the Trial Chamber’s factual findings with respect to murder and extermination are legally sufficient to support individual criminal responsibility through joint criminal enterprise for the crimes of persecutions, murder, and extermination. It must now consider the Appellant’s challenges to those underlying factual findings. The evidence establishing the mens rea for persecutions has already been discussed in the preceding section with respect to the Appellant’s participation in the Common Purpose; because the Common Purpose consisted of a discriminatory ethnic cleansing campaign, the Appellant’s submission that he was unaware of the underlying acts of persecutions is not a reasonable inference.

     (i) Count 5: Murder

230. The Trial Chamber found that while it:

     [did] not believe that the conscious object of Dr. Stakic’s participation in the creation and maintenance of this environment of impunity was to kill the non-Serb citizens of Prijedor municipality … it is satisfied that Dr. Stakic, in his various positions, acted in the knowledge that the existence of such an environment would in all likelihood result in killings, and he reconciled himself to and made peace with this probable outcome.⁴⁸⁰

231. In support of its finding that the Accused possessed the requisite mens rea, the Trial Chamber referred to a significant body of evidence.⁴⁸¹ Witnesses testified that the Appellant assumed the role of President of the Municipal Assembly after the SDS-led take-over on 30 April 1992.⁴⁸² There was also testimony that the previously elected President, Muhamed Cehajic, who opposed the war, was arrested, detained in Omarska camp and killed.⁴⁸³ The Trial Chamber considered evidence that showed that the Appellant worked together with the Police Chief, Simo Drljaca, the highest ranking military officer, Colonel Vladmir Arsic, and the President of the Executive Board, Dr. Milan Kovacevic to implement the SDS-initiated plan to consolidate Serb power in the Prijedor Municipality.⁴⁸⁴

232. The Trial Chamber identified three categories of killings: camp killings, convoy killings and municipality killings.⁴⁸⁵ In light of the Appeals Chamber’s decision to assess the Appellant’s guilt as a participant in a joint criminal enterprise, the matter to be determined is whether these killings were foreseeable to the Appellant when he undertook to further the Common Goal. If the killings were foreseeable to the Appellant, whether he was aware of their occurrence may still be relevant, but only insofar as such awareness might constitute evidence that further killings were foreseeable.

233. With respect to the camp killings, although the Trial Chamber found that it could not conclude that the Appellant ever visited the camps,⁴⁸⁶ it did find sufficient evidence to conclude that the Appellant assisted in the establishment of the camps, was aware of the illegal activities occurring within them,⁴⁸⁷ and “at some point became aware that killings and mistreatment were commonplace” and “accepted that non-Serbs would and did die in those camps.”⁴⁸⁸ In other words, the Trial Chamber was satisfied that killings in the camps were foreseeable to the Appellant. The Appellant’s submission that the Appellant did not know that killings had occurred is insufficient to undermine this finding. The Appeals Chamber finds that the Trial Chamber did not err in concluding that the only reasonable inference from the evidence was that deaths in the camps were foreseeable to the Appellant, and that he willingly took that risk.

234. With respect to the convoy killings, the Trial Chamber cited documentary evidence that the Crisis Staff established an “Intervention Platoon” comprised of individuals with criminal records “with the objective of terrorising the non-Serb population in Prijedor.”⁴⁸⁹ Witness Kuruzovic (commander of the Trnopolje camp) and other Witnesses – including survivors – testified that the intervention platoon led a massacre of approximately 200 men travelling in a convoy over Mount Vlasic on 21 August 1992,⁴⁹⁰ and Witness Kuruzovic, who had been present when the convoy over Mount Vlasic was formed, stated that he “may have discussed” this particular convoy informally with the Appellant.⁴⁹¹ The Trial Chamber concluded that:

     [t]o entrust the escort of a convoy of unprotected civilians to such groups of men, as Dr. Stakic along with his co-perpetrators on several occasions did in order to complete the plan for a purely Serb municipality, is to reconcile oneself to the reasonable likelihood that those travelling on the convoy will come to grave harm and even death.⁴⁹²

235. Witnesses also gave evidence about killings of unarmed non-Serb civilians destined for the camps by armed Serb escorts.⁴⁹³ The Trial Chamber noted that the Appellant, as President of the Crisis Staff, “clearly kept himself informed about the progress of the displacement of the non-Serb citizens in Prijedor”⁴⁹⁴ and concluded that the Appellant reconciled himself to the reasonable likelihood that passengers in certain convoys⁴⁹⁵ would come to grave harm or death.⁴⁹⁶

236. On the basis of the evidence considered, the Trial Chamber did not err in concluding that the only reasonable inference was that it was foreseeable to the Appellant that killings would occur in the course of transporting deportees, and that the Appellant willingly undertook that risk. In particular, it was reasonable for the Trial Chamber to conclude that deliberately entrusting the transportation of unarmed civilians to a platoon of recently released convicted criminals who had been specifically assigned to execute an ethnic cleansing order in the context of a violent conflict was to deliberately place those civilians at risk of grave harm. Notably, it is not necessary for the Appellant to have known that a massacre would occur on a specific convoy or to have been aware of its details; what is relevant is the deliberate undertaking of a serious risk of death. The Trial Chamber reasonably concluded that this mental state was proven beyond a reasonable doubt.

237. With respect to the killings in the municipality generally, the Trial Chamber considered documentary evidence that the military units in Prijedor were heavily reinforced in early May 1992, which was known to the People’s Defence Council, and thus the Appellant.⁴⁹⁷ It also cited the publication Kozarski Vjesnik, which printed warnings and ultimatums delivered by the Crisis Staff to the public, calling on Muslim paramilitaries to surrender or “the Crisis Staff can no longer guarantee the security” of the population of Hambarine and the surrounding area.⁴⁹⁸ The Trial Chamber also considered a report authored by Drljaca, the Chief of the SJB, stating that “the Crisis Staff of Prijedor Municipality decided to intervene militarily in the village [Hambarine]”.⁴⁹⁹ The Trial Chamber concluded that the Appellant knew that the attack on Hambarine would result in civilian casualties.⁵⁰⁰

238. The Trial Chamber referred to testimony from a number of eyewitnesses regarding the Serb military take-over of the Kozarac area, which included attacks (including by artillery) on houses in the villages, and on unarmed civilians in flight, together with the subsequent surrender on 26 May 1992 of a large number of inhabitants who were then brought to the Trnopolje, Omarska and Keraterm camps.⁵⁰¹ It conducted a detailed examination of evidence from witnesses and exhibits showing that during military attacks by Serb forces, civilians were killed in Hambarine,⁵⁰² Biscani,⁵⁰³ Carakovo,⁵⁰⁴ Brisevo⁵⁰⁵ in the Ljubija football stadium,⁵⁰⁶ and in the Ljubija iron ore mine.⁵⁰⁷ It considered an ultimatum to the Muslim town of Kozarac read on Radio Prijedor by the Chief of Staff of the 343rd Motorised Brigade that the Territorial Defence and police in the Kozarac area had to lay down their weapons or the town would be razed.⁵⁰⁸ Finally, the Trial Chamber cited documentary evidence that during the attacks in the municipality, information regarding the fighting was accessible through announcements of the Crisis Staff, which were broadcast hourly on Radio Prijedor, showing that the Crisis Staff was in control of the situation.⁵⁰⁹ In the same bulletin, the Appellant stated that “ciscenje,” or cleansing, was still ongoing in Kozarac “because those remaining are the most extreme and the professionals”.⁵¹⁰

239. On the basis of the evidence considered, it was reasonable for the Trial Chamber to conclude that the only reasonable inference to be made from the above-described evidence was that the municipality killings were foreseeable to the Appellant and that he willingly accepted the risk that they would occur. The Trial Chamber thus did not err.

     (ii) Count 4: Extermination

240. The Appeals Chamber finds that the Appellant has failed to demonstrate that no reasonable trier of fact could have concluded that the only reasonable inference to be drawn from the evidence at trial was that the Appellant held the required mens rea for extermination. This challenge is assessed in light of the Appeals Chamber’s recharacterisation of the Accused’s responsibility pursuant to joint criminal enterprise.

241. The Trial Chamber found that:

     the Accused, because of his political position and role in the implementation of the plan to create a purely Serb municipality, was familiar with the details and the progress of the campaign of annihilation directed against the non-Serb populations. Dr. Stakic was aware of the killings of non-Serbs and of their occurrence on a massive scale.⁵¹¹

     The Trial Chamber concluded that the Appellant possessed “at least dolus eventualis ” with respect to the crime of extermination.⁵¹² Within the framework of joint criminal enterprise liability, this conclusion demonstrates that it was foreseeable to the Appellant that the crime of extermination occurred as a result of the implementation of the Common Purpose.

242. The same evidence discussed above that demonstrated the Appellant’s mens rea for murder also supports his mens rea for extermination, as that evidence also goes to support the allegations of mass killings such as those in Room 3 of the Keraterm camp and on Mount Vlasic.⁵¹³ Given the widespread killing, including numerous massacres, that took place (the Trial Chamber estimated that 1,500 persons were killed), it would not have been reasonable to conclude that the Appellant, in light of his position as head of the Crisis Staff, was unaware of the risk of extermination. Thus, consistent with the analysis in the previous section, it was reasonable for the Trial Chamber to conclude that these mass killings were foreseeable to the Appellant and that he willingly undertook the risk that they would occur.

     (c) Conclusion

243. In view of all the foregoing reasons, the Appeals Chamber finds that the Trial Chamber did not err in drawing the inferences which it did. This ground of appeal is accordingly denied.
     VIII. THE APPELLANT’S FOURTH GROUND OF APPEAL: THE TRIAL CHAMBER’S APPLICATION OF ARTICLE 5 OF THE STATUTE

244. The Appellant submits that the Trial Chamber erred in law and in fact in its application of various elements of Article 5 of the Statute, namely: the Trial Chamber’s findings that the purported attack was “widespread” and “systematic”; the Trial Chamber’s analysis of the respective requirements for extermination and persecutions ; and the Trial Chamber’s analysis of deportation.⁵¹⁴ Each of these alleged errors is addressed by the Appeals Chamber below.
     A. The Trial Chamber’s finding that the purported attack was “widespread ” and “systematic”

245. The Appellant denies that the attacks were systematic, and submits instead that they were isolated,⁵¹⁵ “sporadic, random and uncontrollable, or committed by unrelated third parties.”⁵¹⁶ The Appellant argues that the Prosecution’s evidence, including military documents, demonstrates that only some of the potential targets of the attack were subjected to violence, and contends that this demonstrates that the attack was not systematic.⁵¹⁷ He further contends that the attack also was not “widespread”, citing certain evidence submitted at trial by the Prosecution,⁵¹⁸ as well as findings made by another Trial Chamber in a decision in Prosecutor v. Brdjanin, of which the Appellant invites the Appeals Chamber to take judicial notice.⁵¹⁹

246. At issue is whether the Trial Chamber erred in concluding that the attacks against the non-Serb civilian population of the Prijedor Municipality, to which the Appellant was a party, were widespread or systematic. The jurisprudence of the Tribunal is clear that, for the purposes of crimes against humanity, an attack must be either “widespread” or “systematic” but need not be both.⁵²⁰ The Appeals Chamber notes that the Trial Chamber, while recognising the disjunctive nature of the requirements, concluded that the attack was both widespread and systematic.⁵²¹

247. The Appellant’s submissions appear to presume that a systematic attack against a civilian population must encompass the entire civilian population of the particular territory attacked.⁵²² That presumption is incorrect. As the Appeals Chamber has previously held:

     It is sufficient to show that enough individuals were targeted in the course of the attack, or that they were targeted in such a way as to satisfy the Chamber that the attack was in fact directed against a civilian “population”, rather than against a limited and randomly selected number of individuals.⁵²³

     Accordingly, an attack against a civilian population may be classified as systematic even where some members of that civilian population are not targeted.

248. The Appeals Chamber notes that the Trial Chamber found that the attack in the instant case was systematic because it had been prepared as of 7 January 1992 “when the Assembly of the Serbian People in Prijedor was first established” and the plan “to rid the Prijedor municipality of non-Serbs and others not loyal to the Serb authorities” was activated.⁵²⁴ The Trial Chamber found that attacks ensued beginning in late May 1992, according to the plan, directed against the civilian populations in the locations of, inter alia, Hambarine and Kozarac, as well as “predominantly non-Serb areas including the Brdo region …, with hundreds of non-Serbs killed and many more arrested and detained by the Serb authorities.”⁵²⁵

249. The majority of the exhibits cited by the Appellant provide no support for his argument that the attacks were in fact sporadic and random.⁵²⁶ As for the Appellant’s reference to exhibit D25, a newspaper article, and the testimony of its author, Witness Vulliamy, the Appeals Chamber considers that it is important to view both the testimony and exhibit D25 in context. Both illustrate Witness Vulliamy’s observation that, on the specific date of his visit to Omarska on 7 August 1992, there was “no visible evidence of serious violence, let alone systematic extermination.”⁵²⁷ At trial, however, Witness Vulliamy provided the important qualification that this observation was made on a single day during the conflict.⁵²⁸ Testimony from the same witness regarding the situation of the conflict in Prijedor after he had conducted further investigations sufficiently supports the Trial Chamber’s finding that the attack was systematic.⁵²⁹ In any event, the fact that a single witness did not see signs of serious violence on a particular day is not inconsistent with the Trial Chamber’s finding that there was a systematic attack in the Municipality of Prijedor during the period relevant to the Indictment.

250. The Appellant has failed to demonstrate to the Appeals Chamber how the Trial Chamber’s findings of the existence of a systematic attack were unreasonable in light of all the evidence. Therefore, the Appeals Chamber finds that there is no basis on which to overturn the finding by the Trial Chamber that the attack was systematic.

251. Having found that the Trial Chamber did not err in concluding that a systematic attack occurred, the Appeals Chamber finds that, for reasons of judicial economy, it is not necessary to address whether such an attack is also widespread.⁵³⁰ The related submissions are accordingly dismissed.
     B. Extermination as a crime against humanity

252. The Appellant submits that the Trial Chamber erred in its application of the mens rea required for extermination as a crime against humanity by broadly construing and redefining it.⁵³¹ As these arguments have been addressed in Section V,⁵³² the Appeals Chamber declines to consider them further here.

253. The Appellant argues that the Trial Chamber erred in law in three different ways in its treatment of extermination as a crime against humanity. First, the Appellant submits that, in addition to the requisite mens rea, a “vast scheme to commit collective murder” must be established, collective in nature and not directed at “singled out individuals”,⁵³³ and that a person charged with extermination must also be aware of this putative “vast scheme”.⁵³⁴ Next, the Appellant submits that the mens rea for the crime of extermination requires an intent to kill a large number of individuals, that “this number should be in the thousands in order to meet the threshold of severity and gravity of the crime…”⁵³⁵ and that the acts making up the crime must be collective in nature and not directed at “singled out individuals.”⁵³⁶ The Appellant’s other arguments concern the applicability of the dolus eventualis standard and/or the sufficiency of the evidence of his mental state, and have already been dismissed above.

254. In a separate section of his Appeal Brief,⁵³⁷ the Appellant submits that his conviction for extermination “does not follow from a proper review of the totality of the evidence”, and that the Trial Chamber itself concluded that he did not have the intent to kill the non-Serbs of the Municipality of Prijedor.⁵³⁸ He argues that the only evidence that he knew of deaths in the camps related to two persons who had died of natural causes at Omarska,⁵³⁹ and that this was gleaned from a solitary exhibit.⁵⁴⁰

255. The Prosecution understands the Appellant to be submitting that extermination has two subjective and six material elements.⁵⁴¹ The Prosecution submits that the Appellant’s approach is a flawed “accumulation” of putative elements drawn from the Vasiljevic and Krstic Trial Judgements,⁵⁴² which conflates the elements of the crime of extermination with the modes of liability.⁵⁴³ Contrary to the Appellant’s assertions, the Prosecution submits that the jurisprudence of the Tribunal and of the ICTR has established only two elements for the crime of extermination: the actus reus of mass killing, and the mens rea of an intent to kill or cause serious bodily harm “in the reasonable knowledge of the possibility of causing death on a massive scale.”⁵⁴⁴ Moreover, the Prosecution argues that the Vasiljevic Trial Chamber’s elucidation of the elements of extermination was incorrect, in part because it misinterpreted certain post-World War II precedents. Finally, it asserts that even if the Appellant’s interpretation of the crime’s elements were correct, those elements were satisfied here.

256. As a preliminary matter, the Appeals Chamber takes note of the Prosecution’s submission that the Vasiljevic Trial Chamber⁵⁴⁵ may have erred in adopting the charging practices of the Prosecution in certain post-World War II cases. This matter has already been addressed by the ICTR Appeals Chamber in Ntakirutimana, in which a submission similar to that of the Appellant was dismissed as unfounded:

     The argument put forward by [the Appellants] stems from an erroneous interpretation of the Vasiljevic Trial Judgement. In that case, [the] Trial Chamber … did not consider that the accused had to be in a position of authority for the crime of extermination. The paragraph of the Vasiljevic Trial Judgement on which [the Appellants] rely is a simple outline of the policy for the crime of extermination as practised by tribunals after World War II, and has no impact on the definition of the crime. There was no finding in Vasiljevic that extermination charges are reserved for persons exercising power and authority or who otherwise had the capacity to be instrumental in the killings of large numbers. As [the Appellants] have identified no other authority in support of their argument that the crime of extermination should be reserved for this category of individuals alone, and authorities of [the ICTR] and that of the ICTY have established otherwise, this ground of appeal is dismissed as unfounded.⁵⁴⁶

257. The Appeals Chamber adopts the reasoning of the ICTR Appeals Chamber in Ntakirutimana on this point. It now turns to the two questions which it understands the Appellant to be raising with respect to the crime of extermination: (a) is a “vast scheme of collective murder”, and knowledge of such a scheme, required? (b) is the intent to kill a large number of victims required?
     1. Is knowledge of a “vast scheme of collective murder” required?

258. The Appeals Chamber finds that the jurisprudence of the Tribunal does not support requirements of either a ‘vast scheme of collective murder’ or knowledge of such a scheme.⁵⁴⁷ The Appellant has failed to refer to any other jurisprudence which might support such a requirement, and the Appeals Chamber is unaware of any. While the Vasiljevic Trial Judgement, relied upon by the Appellant, may have opined that such a requirement would be “largely consistent” with the jurisprudence of the Tribunal, there is no indication that such a requirement exists.⁵⁴⁸ The Appeals Chamber notes furthermore that the Vasiljevic Trial Judgement did not include “knowledge of a vast scheme of collective murder” in its summation of the elements of the crime of extermination.⁵⁴⁹

259. Accordingly, the Appeals Chamber concurs with the finding of the Trial Chamber in the instant case that knowledge of a “vast scheme of collective murder” is not an element required for extermination, a crime against humanity.⁵⁵⁰ The ICTR Appeals Chamber has clearly stated that the actus reus of extermination is “the act of killing on a large scale.”⁵⁵¹ The actus reus also includes “subjecting a widespread number of people or systematically subjecting a number of people to conditions of living that would inevitably lead to death”.⁵⁵² The mens rea required for extermination is that the accused intended, by his acts or omissions, either killing on a large scale, or the subjection of a widespread number of people, or the systematic subjection of a number of people, to conditions of living that would lead to their deaths.⁵⁵³ The Appellant’s contentions in this respect are therefore dismissed.
     2. Is the intent to kill a large number of victims required?

260. The mens rea of extermination clearly requires the intention to kill on a large scale or to systematically subject a large number of people to conditions of living that would lead to their deaths.⁵⁵⁴ This intent is a clear reflection of the actus reus of the crime.⁵⁵⁵ The Appeals Chamber notes, however, that there is no support in customary international law for the requirement of intent to kill a certain threshold number of victims, as suggested here by the Appellant. This is consistent with the fact that there is no numerical threshold established with respect to the actus reus of extermination, as previously stated by the ICTR Appeals Chamber in Ntakirutimana:

     Extermination differs from murder in that it requires an element of mass destruction, which is not required for murder. The Appeals Chamber agrees with the Trial Chamber that the crime of extermination is the act of killing on a large scale. The expressions “on a large scale” or “large number” do not, however, suggest a numerical minimum.⁵⁵⁶

261. Accordingly, the Appeals Chamber is unable to agree with the Appellant’s submission that the crime of extermination requires the intent to kill thousands in order to meet the threshold of severity and gravity of the crime.
     3. Did the Trial Chamber err in its consideration of the evidence related to the mens rea for extermination?

262. Where the Appellant submits that his conviction for extermination does not follow from a “proper review of the totality of the evidence”, the Appeals Chamber notes that the portions of the Trial Judgement to which the Appellant refers to substantiate this submission are scant at best.⁵⁵⁷

263. The Trial Chamber found that “[k]illings were perpetrated on a massive scale against the non-Serb population of Prijedor municipality” and that the Appellant, “because of his political position and role in the implementation of the plan to create a purely Serb municipality, was familiar with the details and the progress of the campaign of annihilation directed against the non-Serb population.”⁵⁵⁸ Furthermore, the Trial Chamber concluded that the Appellant, “as President of the People’s Defence Council, was the key co-ordinator between [the Serb civilian, police, and military] authorities.”⁵⁵⁹ These facts led the Trial Chamber to find that the Appellant “was aware of the killings of non-Serbs and of their occurrence on a massive scale” and that he “acted with the requisite intent, at least dolus eventualis, to exterminate the non-Serb population of Prijedor municipality in 1992.”⁵⁶⁰

264. The Appeals Chamber has clarified the mode of liability pursuant to which the Appellant is liable for extermination: the third category of joint criminal enterprise.⁵⁶¹ On the basis, inter alia, of the above findings, the Appeals Chamber has found the Appellant liable for the crime of extermination on the basis that massive killings of individuals were a natural and foreseeable consequence of the Common Purpose and that, despite being aware of this possibility, he nevertheless acted in furtherance of the Common Purpose.⁵⁶² The Appellant has not shown that the findings of the Trial Chamber on which the Appeals Chamber relied in reaching this conclusion are in error. The Appellant’s argument is dismissed.
     C. Deportation as a crime against humanity
     1. Submissions of the Parties

265. The Appellant submits that the Trial Chamber erred in its application of the law on deportation. The Appellant considers deportation to be the forced displacement of persons across a national border, by expulsion or other coercive acts (“involuntarily ”), from an area in which those persons are lawfully present, in a manner not justified by international law, by an actor who intends the forced displacement to be permanent.⁵⁶³

266. The Appellant submits that the Trial Chamber overlooked evidence at trial that showed that persons were leaving Prijedor voluntarily,⁵⁶⁴ and that the Trial Chamber itself found that voluntary departures occurred even before the “take over” of the Prijedor Municipality by the Serbs,⁵⁶⁵ and in particular, before the period specified in the Indictment.⁵⁶⁶ The Appellant contends further that the Trial Chamber erred in inferring his guilt from the involvement of civilian authorities in these departures, when alternative inferences were available.⁵⁶⁷

267. The Appellant further argues that the Trial Chamber erred when it concluded that departures organised by international humanitarian organisations are not permitted under international law, and that he is criminally responsible for participating in such activities.⁵⁶⁸ Rather, he submits that displacement – even if involuntary – does not constitute the crime of deportation when done in pursuit of humanitarian efforts to evacuate civilians from an area of hostilities,⁵⁶⁹ and there may even be a duty to assist such displacement.⁵⁷⁰ The Appellant points out that international humanitarian organisations⁵⁷¹ were involved in transporting non-combatants out of the region, that this humanitarian assistance was heavily solicited by “people who wanted to leave”, and that these organisations sought and received assistance from the local authorities.⁵⁷²

268. The Appellant further avers that while the Trial Chamber recognised that the mens rea for deportation includes the intention to deport permanently,⁵⁷³ it departed from this requirement in that it failed to infer that the Appellant, by co-operating with humanitarian organisations, lacked the intent to deport the non-Serb population permanently.⁵⁷⁴

269. The Prosecution responds that the Trial Chamber did not convict the Appellant for deportation, but instead included his acts constituting deportation under the count for persecutions (Count 6).⁵⁷⁵ As such, the Prosecution avers that the Appellant confuses the findings of the Trial Chamber.⁵⁷⁶

270. The Prosecution denies that the Appellant’s definition of deportation is correct, and instead argues that: (1) deportation does not require removal across a national border⁵⁷⁷ but includes unlawful displacements within a State’s boundaries⁵⁷⁸; and (2) deportation does not require the intent to forcibly displace the victims permanently.⁵⁷⁹

271. Regarding the border requirement, the Prosecution refers to the Krnojelac Appeal Judgement where the Chamber held that:

     acts of forcible displacement underlying the crime of persecution punishable under Article 5(h) of the Statute are not limited to displacements across a national border. … The forced character of displacement … entail[s] the criminal responsibility of the perpetrator, not the destination to which these inhabitants are sent.⁵⁸⁰

     Moreover, the Prosecution refers to the Statute of the Tribunal, which penalises deportation in both international and internal armed conflicts.⁵⁸¹ The Prosecution therefore submits that the Trial Chamber was correct when it held ⁵⁸² that deportation encompasses forced population displacements both across internationally recognised borders and de facto boundaries.⁵⁸³

272. As to the permanence issue, the Prosecution disputes the Trial Chamber’s legal holding. It submits that the Trial Chamber’s premise that, as indicated by the Commentary to Geneva Convention IV, “deportation and forcible transfer are not by their nature provisional” does not support its conclusion that the accused must therefore possess “an intent that the transferred persons should not return”.⁵⁸⁴ Rather, the Prosecution contends that “provisional” displacement, in the context of the Commentary, refers to evacuations for humanitarian purposes. In the Prosecution’s view, it is their lack of humanitarian justification and forcible nature, and not their intended permanence, that distinguishes deportation and forcible transfer from provisional evacuation. The Prosecution observes that neither the text of Geneva Convention IV nor the Appeals Chamber’s jurisprudence supports a permanence requirement.

273. The Prosecution submits that in any event, there is ample evidence that the Appellant “intended the displacement of thousands [of people] to be final”, such as his participation (albeit indirect) in the destruction, confiscation and redistribution of Bosnian Muslim property.⁵⁸⁵ Moreover, the Prosecution observes, the evidence also demonstrated that the displacement was involuntary and that, to the extent it had a humanitarian purpose, this was only because of a humanitarian crisis that the Appellant himself had deliberately created.⁵⁸⁶
     2. Discussion

274. The Appellant raises a number of different issues in relation to the crime of deportation which require the Appeals Chamber’s attention: (1) whether the crime of deportation requires a cross-border transfer; (2) whether deportation requires an intent to permanently displace the victims; and (3) whether the Trial Chamber erred in its analysis of the facts which led it to convict the Appellant for deportation so as to occasion a miscarriage of justice.

275. At the outset, however, the Appeals Chamber recognises that the Prosecution is correct that the Appellant was not actually convicted of deportations as a crime against humanity, but only as an underlying act of the crime of persecutions.⁵⁸⁷ However, the Trial Chamber in this case did hold that the Appellant committed the crime of deportation;⁵⁸⁸ it merely declined to enter a conviction because it concluded that to enter convictions for both deportation and persecutions would be impermissibly cumulative. Because the Appeals Chamber will vacate that conclusion below,⁵⁸⁹ the question whether the Appellant should be liable for deportation as a crime against humanity is not moot.

     (a) The elements of the crime of deportation

276. Article 5(d) of the Statute recognises deportation as a crime against humanity. The Appeals Chamber notes that, prior to the adoption of the Statute, deportation was considered a crime against humanity in other legal instruments such as in the Nuremberg Charter,⁵⁹⁰ the IMT Judgement,⁵⁹¹ the Charter of the International Military Tribunal for the Far East,⁵⁹² (Allied) Control Council Law No. 10,⁵⁹³ the International Law Commission’s Principles of International Law Recognised in the Charter of the Nuremberg Tribunal (IMT),⁵⁹⁴ and the 1954 Draft Code of Offences against the Peace and Security of Mankind.⁵⁹⁵ However, neither the Statute nor the other instruments referred to above provide a clear definition of deportation.

277. The protected interests underlying the prohibition against deportation include the right of the victim to stay in his or her home and community and the right not to be deprived of his or her property by being forcibly displaced to another location.⁵⁹⁶ The same protected interests underlie the criminalisation of acts of forcible transfer, an “other inhumane act ” pursuant to Article 5(i) of the Statute.⁵⁹⁷

278. The Appeals Chamber is of the view that the actus reus of deportation is the forced displacement of persons by expulsion or other forms of coercion from the area in which they are lawfully present, across a de jure state border or, in certain circumstances, a de facto border, without grounds permitted under international law. The Appeals Chamber considers that the mens rea of the offence does not require that the perpetrator intend to displace the individual across the border on a permanent basis. These elements reflect the jurisprudence of the Tribunal to date.⁵⁹⁸ However, a number of issues, including those raised here, are contentious and are accordingly clarified below.

     (i) Forced character of the displacement

279. The definition of deportation requires that the displacement of persons be forced, carried out by expulsion or other forms of coercion such that the displacement is involuntary in nature, and the relevant persons had no genuine choice in their displacement.⁵⁹⁹ Factors other than force itself may render an act involuntary, such as taking advantage of coercive circumstances.⁶⁰⁰ The Appeals Chamber has previously stated, albeit in the context of forcible displacement, that “it is the absence of genuine choice that makes displacement unlawful”, a statement which is equally applicable to deportation.⁶⁰¹ Therefore, while persons may consent to (or even request⁶⁰²) their removal, that consent must be real in the sense that it is given voluntarily and as a result of the individual’s free will, assessed in the light of the surrounding circumstances.⁶⁰³

280. In the Krstic Trial Judgement, for example, the Trial Chamber held that “despite the attempts by the VRS to make it look like a voluntary movement, the Bosnian Muslims of Srebrenica were not exercising a genuine choice to go, but reacted reflexively to a certainty that their survival depended on their flight.”⁶⁰⁴

281. The Appeals Chamber therefore agrees with the statement made in the Krnojelac Trial Judgement that the term “forced”, when used in reference to the crime of deportation, is not to be limited to physical force but includes the threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power against such person or persons or another person, or by taking advantage of a coercive environment.⁶⁰⁵

282. The determination as to whether a transferred person had a genuine choice is one to be made within the context of the particular case being considered. In the instant case, the Trial Chamber concluded that “the atmosphere in the municipality of Prijedor during the time relevant to the Indictment was of such a coercive nature that the persons leaving the municipality cannot be considered as having voluntarily decided to give up their homes.”⁶⁰⁶ As is clear from the discussion above, such a finding was open to the Chamber as a matter of law. The Appellant’s allegation that the departures were “voluntary” because of the absence of physical force is thus without merit.

283. With respect to the factual basis for the Trial Chamber’s finding, the Appellant has not demonstrated how the Trial Chamber’s conclusions about the coercive atmosphere pervading the Municipality of Prijedor are such that no reasonable trier of fact could have made them.⁶⁰⁷ Consequently, the Appeals Chamber finds that the Trial Chamber did not err either as a matter of law or fact in finding that the departures were involuntary, and therefore unlawful.

284. As to the Appellant’s argument that international law permits involuntary removal on humanitarian grounds, the Appeals Chamber observes that the Geneva Conventions do allow such removals under certain limited circumstances. The Appeals Chamber notes that international law recognises certain grounds permitting forced removals, and that if an act of forced removal is carried out on such a basis, that act cannot constitute the actus reus of the crime of deportation. Article 19 of Geneva Convention III provides for the evacuation of prisoners of war out of the combat zone and into internment facilities, subject to numerous conditions.⁶⁰⁸ Article 49 of Geneva Convention IV provides that:

     … the Occupying Power may undertake total or partial evacuation of a given area if the security of the population or imperative military reasons so demand. Such evacuations may not involve the displacement of protected persons outside the bounds of the occupied territory except when for material reasons it is impossible to avoid such displacement. Persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased.⁶⁰⁹

285. Article 17 of Additional Protocol II recognises that the displacement of the civilian population may be ordered “for reasons related to the conflict” where inter alia “the security of the civilians involved or imperative military reasons so demand”.

286. The displacements at issue in the current case were held by the Trial Chamber to be unlawful because of their involuntary nature. This finding was reasonable based on the facts considered by the Trial Chamber. None of the provisions set out above justify forced removals merely because of the involvement of an NGO. The Appeals Chamber considers, therefore, that the participation of an NGO in facilitating displacements does not in and of itself render an otherwise unlawful transfer lawful.

287. Although displacement for humanitarian reasons is justifiable in certain situations,⁶¹⁰ the Appeals Chamber agrees with the Prosecution that it is not justifiable where the humanitarian crisis that caused the displacement is itself the result of the accused’s own unlawful activity. In the instant case, the evidence supports only one reason why it might arguably have been safer for Bosnian Muslims in Prijedor to be displaced: the dangers posed to them by the criminal scheme of persecutions undertaken by the Appellant and his co-perpetrators.

     (ii) Cross-border transfer

288. The Trial Chamber found it necessary that for the purposes of deportation, the displacement take place across either “internationally recognised borders [or]de facto boundaries, such as constantly changing frontlines, which are not internationally recognised”.⁶¹¹ The Trial Chamber also seemingly endorsed the view that the value of a cross-border requirement for the crime of deportation is negligible, since “what has in the jurisprudence been considered two separate crimes [deportation and forcible transfer] is in reality one and the same crime.”⁶¹² With divergent views from the parties before it, the Appeals Chamber finds it necessary to examine the question in some detail.

289. The following survey of relevant international law and authority supports the Appeals Chamber’s conclusion that deportation as a crime against humanity under Article 5(d) of the Statute requires that individuals be transferred across a state border or, in certain circumstances, a de facto border. The Appeals Chamber notes that certain sources to which it refers clearly concern deportation as a war crime rather than as a crime against humanity. The Appeals Chamber believes that reference to these sources is instructive because deportation as a crime against humanity developed out of deportation as a war crime – as a way of extending the scope of the crime’s protection to civilians of the same nationality as the perpetrator.⁶¹³

     a. WWII-related jurisprudence

290. The IMT Judgement considered the issue of deportation as a crime against humanity, as did a number of trials conducted under Control Council Law No. 10. The IMT Judgement states that “[w]hole populations were deported to Germany for the purposes of slave labour upon defence works, armament production and similar tasks connected with the war effort”⁶¹⁴ and “[b]y the middle of April, 1940, compulsory deportation of labourers to Germany had been ordered in the Government General; and a similar procedure was followed in other eastern territories as they were occupied. A description of this compulsory deportation from Poland was given by Himmler.”⁶¹⁵ Furthermore, “Frank introduced the deportation of slave labourers to Germany in the very early stages of his administration”,⁶¹⁶ and reference is made to the “mass deportation of almost 120,000 of Holland’s 140,000 Jews to Auschwitz”, and the final solution, under Seyss-Inquart,⁶¹⁷ while Von Schirach was found to have participated in the deportation of Jews from Vienna to the “ghetto of the East.”⁶¹⁸

291. In the case of United States of America v. Milch, conducted under Control Council Law No. 10, the Concurring Opinion of Judge Philips stated that “[d]isplacement of groups of persons from one country to another is the proper concern of international law in as far as it affects the community of nations. International law has enunciated certain conditions under which the fact of deportation of civilians from one nation to another during times of war becomes a crime.”⁶¹⁹ This statement was cited with approval in the case of United States of America v. Alfried Krupp et al.⁶²⁰

     b. The Geneva Conventions and Additional Protocols

292. Article 49 of the Geneva Convention IV provides as follows:

     Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.⁶²¹

293. Article 85 of Additional Protocol I precludes an Occupying Power from transferring parts of its own civilian population into the territory it occupies, or from deporting or transferring all or part of the population of the occupied territory within or outside this territory in violation of Article 49 of the Fourth Convention.

294. Article 17 of Additional Protocol II dealing with non-international armed conflicts provides in the relevant part that “[c]ivilians shall not be compelled to leave their own territory for reasons connected with the conflict.” While Article 17 does not expressly address deportation or forcible transfer, this provision draws a careful distinction between displacement within the territory in which a person lives and compelled movement to another territory.⁶²²

     c. The ILC Draft Code

295. The 1991 precursor to the 1996 ILC Draft Code of Crimes against the Peace and Security of Mankind, pre-dating the acts alleged as deportation in this case, states that “[d]eportation, already included in the 1954 [D]raft Code, implies expulsion from the national territory, whereas the forcible transfer of population could occur wholly within the frontiers of one and the same State.”⁶²³ This clarification was incorporated verbatim into the Commentary on Article 18(g) of the 1996 ILC Draft Code⁶²⁴ which includes, as crimes against humanity, “arbitrary deportation or forcible transfer of population.”⁶²⁵

     d. The ICRC study on customary international humanitarian law

296. In 2005, the ICRC published its study on the current state of customary international humanitarian law.⁶²⁶ In this study, Rule 129 provides as follows:

     A. Parties to an international armed conflict may not deport or forcibly transfer the civilian population of an occupied territory, in whole or in part, unless the security of the civilians involved or imperative military reasons so demand.

     B. Parties to a non-international armed conflict may not order the displacement of the civilian population, in whole or in part, for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand.

     Deportation is clearly prohibited as a crime where the conflict encompasses an occupied territory. This rule confirms the law as established under Article 49 of Geneva Convention IV that deportation applies to displacements crossing the border of an occupied territory.

297. The Appeals Chamber is fully cognisant that the ICRC study post-dates the period relevant to the Indictment in the current case. Rule 129 is nonetheless instructive because it demonstrates that, as of the time the crimes at issue in this case were committed, the offence of deportations still required displacement across a border – though Rule 129 says little about what type of borders satisfy this requirement.

     e. The jurisprudence of the Tribunal

298. At least one Trial Chamber of the Tribunal has taken the view that no cross -border transfer is required in order for deportation to be established.⁶²⁷ The Trial Judgement in the instant case concluded that a border requirement of some kind is necessary, but that the nature of this border was somewhat flexible:

     [I]t would make little or no sense to prohibit acts of deportation, in the words of the Security Council, “regardless of whether they are committed in an armed conflict, international or internal in character” and at the same time to limit the possibility of punishment to cases involving transfers across internationally recognised borders only.⁶²⁸

     As a result, the Trial Chamber concluded that transfer across “de facto boundaries, such as constantly changing frontlines, which are not internationally recognised ” would be sufficient for the purposes of deportation.

299. On other occasions, however, Trial Chambers have found that the crime of deportation requires a cross-State border transfer.⁶²⁹ The Krstic Trial Judgement held that deportation and forcible transfer “are not synonymous in customary international law. Deportation presumes transfer beyond State borders, whereas forcible transfer relates to displacements within a State.”⁶³⁰

     f. Finding

300. In the view of the Appeals Chamber, the crime of deportation requires the displacement of individuals across a border. The default principle under customary international law with respect to the nature of the border is that there must be expulsion across a de jure border to another country, as illustrated in Article 49 of Geneva Convention IV and the other references set out above. Customary international law also recognises that displacement from ‘occupied territory’, as expressly set out in Article 49 of Geneva Convention IV⁶³¹ and as recognised by numerous Security Council Resolutions, ⁶³² is also sufficient to amount to deportation. The Appeals Chamber also accepts that under certain circumstances displacement across a de facto border may be sufficient to amount to deportation. In general, the question whether a particular de facto border is sufficient for the purposes of the crime of deportation should be examined on a case by case basis in light of customary international law.

301. In the instant case, the Trial Chamber has advocated an expansive view of deportation, encompassing displacements across “constantly changing frontlines”.⁶³³ It is clear from the facts of the case that the constantly changing frontlines in question are neither de jure state borders nor the de facto borders of occupied territory,⁶³⁴ either of which would automatically be sufficient to amount to deportation under customary international law, as discussed above. Therefore, it is necessary to examine whether customary international law would support a finding that “constantly changing frontlines ” may amount to de facto borders sufficient for the purposes of the crime of deportation.

302. The Trial Judgement does not refer to any evidence that demonstrates that transfers across constantly changing frontlines may amount to deportation under customary international law. Similarly, the Prosecution, which favours the finding of the Trial Chamber, does not identify any evidence in support of this view. The Appeals Chamber has itself been unable to find support for such a finding. It therefore concludes that the Trial Chamber’s finding in this respect in fact expands criminal responsibility by giving greater scope to the crime of deportation than exists under customary international law, and thus violates the principle of nullum crimen sine lege. In the view of the Appeals Chamber, such an approach is not legally justified, nor is it necessary – the application of the correct definition of deportation would not leave individuals without the protection of the law. Individuals who are displaced within the boundaries of the State or across de facto borders not within the definition of deportation, remain protected by the law, albeit not under the protections afforded by the offence of deportation. Punishment for such forcible transfers may be assured by the adoption of proper pleading practices in the Prosecution’s indictments – it need not challenge existing concepts of international law.

303. As the Appeals Chamber holds that displacements across constantly changing frontlines are not sufficient under customary international law to ground a conviction for deportation, it concludes that, to the extent the Trial Chamber convicted the Appellant of deportations for displacements across such changing frontlines, the Trial Chamber erred as a matter of law and exceeded the scope of its jurisdiction.

     (iii) Is there a requirement of an intent to permanently displace the victims of deportation ?

304. There has been a lack of consistency in the jurisprudence of the Tribunal regarding the requisite mens rea for the offence of deportation. Several Judgements have entered convictions for deportation without making any findings on a putative intent to deport permanently.⁶³⁵ Conversely, the Blagojevic and Jokic, Brdanin, Simic et al., and Naletilic and Martinovic Trial Chambers, as well as the Trial Chamber in this case, all required that the perpetrator act with the intent that the removal of the persons be permanent.⁶³⁶

305. The Judgements requiring an intent to permanently remove the victims rely for their authority on a statement in the ICRC Commentary on Article 49 of Geneva Convention IV.⁶³⁷ The Commentary states that :

     Unlike deportation and forcible transfers, evacuation is a provisional measure entirely negative in character, and is, moreover, often taken in the interests of the protected persons themselves.⁶³⁸

     The Trial Chamber in this case appears to have interpreted this statement to mean that “the intent of the perpetrator must be that the victim is removed, which implies the aim that the person is not returning.”⁶³⁹

306. Article 49 of Geneva Convention IV itself, the underlying instrument prohibiting deportation regardless of the motive behind the act, contains no suggestion that deportation requires an intent that the deportees should not return.⁶⁴⁰ The Appeals Chamber is concerned that care should be taken not to read too much into the Commentary on Geneva Convention IV, and finds that the Commentary to Article 49 in particular is primarily an attempt to distinguish “evacuation”, a form of removal permitted by the Convention which is by definition provisional, from the crimes of deportation and forcible transfer.

307. The Appeals Chamber therefore chooses to follow the text of Article 49 and concludes that deportation does not require an intent that the deportees should not return. The Trial Chamber therefore erred when it reached a contrary conclusion on the basis of the ICRC commentary.⁶⁴¹ Because the Trial Chamber found that the Appellant intended to permanently displace the deportees, however, the Trial Chamber’s error proved harmless in this case. The Appeals Chamber only corrects this error so that, in future cases, Trial Chambers will not require proof of intent to permanently displace deportees.

     (iv) Conclusion

308. On the basis of the reasoning set out above, the Appeals Chamber rejects the Appellant’s submissions with respect to the legality of departures organised by international humanitarian organisations. In relation to the question whether the Trial Chamber correctly applied the elements of the crime of deportation, the Appeals Chamber finds that the Trial Chamber erred in its characterisation of both the element of a cross-border transfer and the requisite mens rea for the crime of deportation.

     (b) Whether the Trial Chamber erred in its analysis of the facts regarding deportation

309. As to the question of whether the Trial Chamber erred in inferring the Appellant’s guilt from the involvement of civilian authorities in the departures, the Appeals Chamber considers that the Appellant misconstrues the findings of the Trial Chamber.⁶⁴²

310. The Trial Chamber’s findings as to the Appellant’s responsibility for the deportation of civilians from the Municipality of Prijedor were clearly not inferred from the involvement of civilian authorities. The Trial Chamber found that non-Serb civilians were fleeing the Prijedor area in order to escape the hostile environment⁶⁴³ created in part by the Appellant himself, together with the Serb authorities, which “was of such a coercive nature that the persons leaving the municipality cannot be considered as having voluntarily decided to give up their homes”.⁶⁴⁴ Not only was this eventuality foreseen, it was indeed the intended result of a plan in which the Appellant was a participant.⁶⁴⁵ Given that the Trial Chamber clearly did not base its finding of responsibility for deportations on the inference suggested by the Appellant, the Appeals Chamber declines to consider this argument.

311. The Appellant also makes a general assertion that the Trial Chamber erred in failing to consider the totality of the evidence and drew improper inferences from the evidence it did review. However, the Appellant does not identify any specific instance in which this might be the case. This further unsubstantiated submission by the Appellant is accordingly dismissed.

     (c) The effect of the Trial Chamber’s error on the Appellant’s convictions

312. Having established that the Trial Chamber erred in law, it is necessary for the Appeals Chamber to apply the correct legal definition of deportation to the factual findings of the Trial Chamber. In this way, the Appeals Chamber may establish whether it is convinced beyond reasonable doubt as to the challenged factual findings before that finding is confirmed on appeal.

     (i) The Trial Chamber’s treatment of forcible transfer

313. As a preliminary matter, the Appeals Chamber notes that forcible transfer was charged in the Indictment as an “other inhumane act” pursuant to Article 5(i) of the Statute.⁶⁴⁶ The Trial Chamber, however, found that the use of Article 5(i) to attach criminal liability to forcible transfers raised serious concerns, and held that:

     the crime of 'other inhumane acts’ subsumes a potentially broad range of criminal behaviour and may well be considered to lack sufficient clarity, precision and definiteness [which] might violate the fundamental criminal law principle nullum crimen sine lege certa.⁶⁴⁷

     In light of this consideration, the Trial Chamber concluded that a conviction based on Article 5(i) for acts of forcible transfer as inhumane acts could not be entered.⁶⁴⁸

314. While neither party appealed this issue in the instant case, the Appeals Chamber finds that it is a matter of great importance to the consistency of the Tribunal’s jurisprudence such that it warrants an examination proprio motu.

315. The Appeals Chamber notes first that the notion of “other inhumane acts” contained in Article 5(i) of the Statute cannot be regarded as a violation of the principle of nullum crimen sine lege as it forms part of customary international law.⁶⁴⁹ The function of this provision as a residual category is clear, as spelled out by the Trial Chamber in the Kupreskic Trial Judgement, which found that Article 5(i) was:

     [d]eliberately designed as a residual category, as it was felt undesirable for this category to be exhaustively enumerated. An exhaustive categorization would merely create opportunities for evasion of the letter of the prohibition.⁶⁵⁰

316. The Appeals Chamber endorses this statement and notes that the provision has been widely used within the Tribunal’s case-law.⁶⁵¹

317. In the instant case, the Prosecution charged forcible transfer (in Count 8 of the Indictment) as the act underlying Article 5(i).⁶⁵² Forcible transfer has been defined in the jurisprudence of the Tribunal as the forcible displacement of persons which may take place within national boundaries.⁶⁵³ The mens rea does not require the intent to transfer permanently. The Appeals Chamber notes that Article 2(g) of the Statute, Articles 49 and 147 of Geneva Convention IV, Article 85(4)(a) of Additional Protocol I, and Article 18 of the 1996 ILC Draft Code all condemn forcible transfer.⁶⁵⁴ The notion of forcible transfer had therefore clearly been accepted as conduct criminalised at the time relevant to this case, such that it does not violate the principle of nullum crimen sine lege. Furthermore, acts of forcible transfer have been accepted in other cases before the Tribunal as specifically substantiating the notion of other inhumane acts pursuant to Article 5(i).⁶⁵⁵ In view of the foregoing, the Appeals Chamber finds that acts of forcible transfer may be sufficiently serious as to amount to other inhumane acts.⁶⁵⁶ Accordingly, the Appeals Chamber finds that the Trial Chamber erred in finding that a conviction based on Article 5(i) for acts of forcible transfer could not be entered.

318. The Appeals Chamber now turns to consider the findings of the Trial Chamber regarding deportation to see whether, in light of the correct definition of that crime, they may amount to either deportation or forcible transfer.

     (ii) Applying the correct legal definitions of deportation and forcible transfer to the facts

319. The Trial Chamber’s error with respect to the mens rea of deportation has no effect with respect to its findings on that crime. In reaching its conclusion that acts of deportation had taken place, the Trial Chamber was satisfied that the Appellant possessed the intent to transfer the victims on a permanent basis. The correct legal standard, an intent to transfer persons on a non-provisional basis, is therefore necessarily also met. As a result, the Appeals Chamber finds that the Trial Chamber’s error regarding the mens rea did not adversely affect the Appellant’s rights and does not require a reversal of its findings.

320. In contrast, the Trial Chamber’s error with respect to the nature of the cross -border transfer does affect the factual findings of that Chamber. The Appeals Chamber is satisfied that at least one act amounts to deportation under the definition set out above. This act concerns the forcible transfer of Witness Cehajic, who was transported by convoy from Prijedor on 5 September 1992 and arrived in Karlovac, Croatia, one day later.⁶⁵⁷ The Appeals Chamber also notes the Trial Chamber’s finding that two other witnesses testified to being transported in convoys bound for Karlovac in Croatia.⁶⁵⁸ A review of the evidence on which the Trial Chamber relied reveals that they were transported from Prijedor to Karlovac after the end of the period of the Indictment.⁶⁵⁹ Likewise, the Trial Chamber’s finding that 1,561 people were transferred from the Trnopolje Camp in the Municipality of Prijedor to Karlovac⁶⁶⁰ cannot with certainty be placed within the Indictment period.⁶⁶¹ Accordingly, the Appeals Chamber declines to enter findings of deportation for these incidents.

321. Numerous findings in the Trial Judgement relate to forced displacements across frontlines between the parties to the conflict, as well as between locations under Serb control. Forcible transfer across such borders and between such locations is not sufficient to ground a conviction for deportation. However, the Appeals Chamber is satisfied beyond reasonable doubt that the following incidents amount to acts of forcible transfer:

     (1) A convoy from the Trnopolje camp in the Municipality of Prijedor to Skender Vakuf, consisting of five buses, that departed on 18 July 1992⁶⁶²;

     (2) A convoy from Omarska in the Municipality of Prijedor to the Manjaca and Trnopolje camps on 6 August 1992⁶⁶³;

     (3) A convoy from the Municipality of Prijedor through Banja Luka and Skender Vakuf towards Travnik (non-Serb controlled territory) on 17 August 1992⁶⁶⁴;

     (4) A convoy from Tukovi Stadium in the Municipality of Prijedor to Travnik (non -Serb controlled territory) on 21 August 1992⁶⁶⁵;

     (5) A convoy from the Municipality of Prijedor to Travnik (non-Serb controlled territory ) on or about 28 August 1992⁶⁶⁶;

     (6) Daily convoys and trucks from the Municipality of Prijedor to “non-Serb controlled areas”, inter alia Travnik in or about August 1992.⁶⁶⁷

     Consequently, the Appeals Chamber finds that the Trial Chamber was correct in its finding with respect to deportation under Article 5(d) of the Statute in relation to the Trnopolje-Karlovac transfer, but should have entered a conviction for other inhumane acts under Article 5(i) of the Statute for the other acts discussed above.

     D. Persecutions as a crime against humanity

322. The Appellant submits that the Trial Chamber erred in its application of the mens rea required for persecutions as a crime against humanity, pursuant to Article 5 of the Statute, in that it broadly construed and redefined the required mens rea⁶⁶⁸ in violation of the principles in dubio pro reo and nullum crimen sine lege.⁶⁶⁹ As this submission has been dealt with in Section V,⁶⁷⁰ the Appeals Chamber declines to consider it further except in so far as any issue unique to persecutions is raised.

323. The Appellant submits further that the mens rea required for persecutions consists of two elements, namely the mens rea for the crimes underlying persecutions, and the specific discriminatory intent required for persecutions, or dolus specialis.⁶⁷¹ The Appellant submits that the Trial Chamber correctly identified, but erroneously departed from, these requirements insofar as it accepted dolus eventualis as sufficient to prove the mens rea for the acts underlying persecutions, which it alleges is a “lower threshold” than required for persecutions.⁶⁷² He also claims that the Trial Chamber provided inadequate analysis of how the dolus specialis requirement for persecutions was met, and asserts that the totality of the evidence demonstrates that he lacked discriminatory intent and was instead “a promoter of peace”.⁶⁷³ In his Reply Brief, the Appellant challenges the inference drawn by the Trial Chamber that the Appellant’s rhetoric was “merely the typical language of a politician hiding his real political intentions.”⁶⁷⁴

324. The Prosecution submits that the Appellant fails to substantiate his assertion that there are two elements of mens rea required for persecutions, which in the Prosecution’s understanding means that the specific intent required for persecutions also applies to the underlying crime.⁶⁷⁵ Rather, the specific discriminatory intent requirement is merely supplementary and does not change the mens rea required for the underlying act.⁶⁷⁶ Further, the Prosecution submits that the Trial Chamber did not err in finding the mens rea of the underlying acts to include dolus eventualis⁶⁷⁷ and points out that the Trial Chamber found⁶⁷⁸ that the Appellant acted with discriminatory intent in any event.⁶⁷⁹

325. The Prosecution submits that the Appellant has failed to substantiate the error he alleges regarding the Trial Chamber’s evaluation of the evidence.⁶⁸⁰ The Prosecution responds that the two items of evidence⁶⁸¹ relied upon by the Appellant are cited out of context and do not undermine the “ overwhelming totality of evidence” establishing the Appellant’s discriminatory intent beyond reasonable doubt.⁶⁸² The Appellant has not demonstrated that the Trial Chamber erred in concluding that the Appellant acted with discriminatory intent.⁶⁸³

326. The Trial Judgement found the Appellant guilty of persecutions based on the underlying acts⁶⁸⁴ of murder and deportation,⁶⁸⁵ as well as torture,⁶⁸⁶ physical violence,⁶⁸⁷ rape,⁶⁸⁸ constant humiliation and degradation,⁶⁸⁹ and destruction of or willful damage to religious and cultural buildings.⁶⁹⁰

327. The Appeals Chamber notes that the definition of persecutions is well established in the jurisprudence of the Tribunal. The crime consists of:

     [a]n act or omission that: (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).⁶⁹¹

328. As the Trial Chamber correctly held, in addition to the chapeau requirements of knowledge of a widespread or systematic attack against a civilian population, the mens rea for persecutions consists of the intent to commit the underlying act and the intent to discriminate on political, racial or religious grounds.⁶⁹² The discriminatory intent requirement amounts to a “dolus specialis.”⁶⁹³

329. The Trial Chamber carefully considered evidence of the Appellant’s personal discriminatory intent; such intent was neither presumed nor “transferred” from the direct perpetrators. Indeed, the Trial Chamber found that “it is immaterial for the assessment of the intent of the indirect perpetrator whether or not the actor had such a discriminatory intent”.⁶⁹⁴

330. The Trial Chamber reasoned that the crimes “formed part of a persecutorial campaign headed inter alia by Dr. Stakic as [a] [co-]perpetrator behind the direct perpetrators”⁶⁹⁵; that “as the highest representative of the civilian authorities, Dr. Stakic played a crucial role in the co-ordinated co-operation with the police and army in furtherance of the plan to establish a Serbian municipality in Prijedor”⁶⁹⁶; and that the Appellant “was thus one of the main actors in the persecutorial campaign.”⁶⁹⁷

331. The Appellant refers to “other credible evidence” which allegedly demonstrates his lack of discriminatory intent, but limits himself to a brief discussion of only two exhibits “[d]ue to the page limitations.”⁶⁹⁸

332. The first exhibit to which the Appellant refers is exhibit D56. This exhibit is an announcement from the “new leadership and government”, read out on Radio Prijedor repeatedly on 30 April 1992.⁶⁹⁹ The announcement is signed “the new leadership and government of the Municipality of Prijedor”⁷⁰⁰ but is attributed to the Appellant, and is relied upon by him in his Appeal Brief to show that he expressed a desire for peaceful co-existence in Prijedor.

333. It is not disputed that in the announcement the Appellant professed that the take-over of power in the municipality of Prijedor was motivated by the objective of taking full responsibility for the peaceful and secure life of all citizens and peoples in it, “the protection of their property, the establishment of the rule of law, the organising of the economy, and normal life in the town and in the villages in the area of the municipality.”⁷⁰¹

334. The Appeals Chamber notes, however, that in the same speech the Appellant described how “war and slaughter, burning and destruction, charred homes, screams of terror ” were “the aim of the fanatical and slavish rump leadership of Bosnia and Herzegovina ”, that “normal life and work” had been “disrupted by the single party and single nationality authorities of the Party of Democratic Action”,⁷⁰² and that women and children from the Muslim population from Prijedor had “left for Croatia, Slovenia, Austria, and Germany where they spread lies saying that they were fleeing from massacres being prepared for them by the Serbian people.”⁷⁰³

335. The Appeals Chamber is not persuaded that exhibit D56 supports the Appellant’s case that he lacked the requisite discriminatory intent. Even if it did, however, this would not be sufficient to undermine the Trial Chamber’s conclusion, firmly based on other evidence,⁷⁰⁴ that the Appellant possessed the requisite discriminatory intent.

336. The second exhibit to which the Appellant refers is exhibit SK46. This, the Appellant avers, shows that he had no intention other than to promote peace in Prijedor Municipality, a contention with which the Trial Chamber expressly disagreed following its analysis of that and other evidence. The Trial Chamber found that the Appellant’s statement in exhibit SK46 “was merely the typical language of a politician hiding his real political intentions”,⁷⁰⁵ a finding which the Appellant contests as an error in law in that the inference drawn was not the only reasonable inference available.

337. The Appeals Chamber notes that the Trial Chamber did not simply dismiss the Appellant’s statement as insincere. Rather, the Trial Chamber placed the statement in the context of other “compelling evidence” that illustrated, beyond a reasonable doubt, that the Appellant’s true intention was to ensure the April 1992 take-over of power in Prijedor.⁷⁰⁶ The Appeals Chamber considers that the Trial Chamber’s conclusion was a reasonable one.

338. Despite broad allegations that the Trial Chamber drew other impermissible inferences, the Appellant does not identify any specific instance in which this might be the case. This further unsubstantiated submission by the Appellant is accordingly dismissed.

339. The Appeals Chamber concludes that the Trial Chamber did not err in its consideration of the evidence on the Appellant’s mens rea for persecutions. Accordingly, the arguments of the Appellant are dismissed.
     IX. THE APPELLANT’S FIFTH GROUND OF APPEAL: THE TRIAL CHAMBER’S APPLICATION OF ARTICLE 3 OF THE STATUTE

340. Under his fifth ground of appeal, the Appellant claims that the Trial Chamber erred in its consideration of the evidence establishing a “nexus” between the acts of the Appellant and the armed conflict, as required by Article 3 of the Statute.⁷⁰⁷ He cites the Tadic Trial Judgement for the proposition that for an offence to constitute a violation of international humanitarian law, a Trial Chamber must be satisfied “that each of the alleged acts was in fact closely related to the hostilities.”⁷⁰⁸ Here, the Appellant claims, the Trial Chamber did not specifically analyse the required nexus with respect to each alleged act. Instead, the Trial Chamber relied only on the three particular instances cited in paragraph 576 of the Trial Judgement. The killings in Prijedor occurred later than those instances, the Appellant notes, and cannot be assumed to share the same nexus to the armed conflict.⁷⁰⁹ The Appellant observes that most of the acts in question were committed by the police and not the military, and argues that they are no more closely related to the armed conflict than were the crimes alleged in the Akayesu case before the ICTR, where no nexus was found.⁷¹⁰

341. The Prosecution responds that the Trial Chamber considered the nexus criteria set out in the Kunarac Appeal Judgement, which are settled law,⁷¹¹ and correctly found that the crimes of the Appellant met these criteria.⁷¹² It adds that it is the Appellant’s connection to the hostilities – not to one of the parties involved in the conflict – that is relevant to the nexus analysis and that the distinction between involvements with the military versus the police is irrelevant.⁷¹³

342. For Article 3 to apply, the crime charged must be committed in a time of armed conflict and an accused’s acts must be closely related to that conflict.⁷¹⁴ The latter requirement is known as the “nexus” requirement. The nexus need not be a causal link, “but the existence of an armed conflict must, at a minimum, have played a substantial part in the perpetrator’s ability to commit (the crime(, his decision to commit it, the manner in which it was committed or the purpose for which it was committed.”⁷¹⁵ The Appeals Chamber has thus held that “if it can be established … that the perpetrator acted in furtherance of or under the guise of the armed conflict, it would be sufficient to conclude that his acts were closely related to the armed conflict.”⁷¹⁶ To find a nexus, it is sufficient that the alleged crimes be closely related to the hostilities occurring in other parts of the territories controlled by the parties to the conflict.⁷¹⁷ For example, Article 3 crimes need not be committed in the area of armed conflict, but must at least be “substantially related” to this area, which at least includes the entire territory under control of the warring parties.⁷¹⁸ It is essential, however, that a Trial Chamber establish the existence of a geographical and temporal linkage between the crimes ascribed to the accused and the armed conflict.

343. The Trial Chamber here found that an armed conflict existed in the geographic area and time-period relevant to the Indictment.⁷¹⁹ It then concluded that there was a nexus “between this armed conflict and the acts of the Accused.”⁷²⁰ At first glance, the Trial Chamber’s nexus analysis is brief, demonstrating the connection between the Crisis Staff and the military by examining only two specific instances: the attacks on Hambarine and Kozarac.⁷²¹ The Appellant was ultimately found guilty of many other crimes under Article 3, including July 1992 killings in Biscani, Carakovo, Brisevo, the Ljubija football stadium and the Ljubija iron ore mine area.⁷²²

344. While it would have been preferable had the Trial Chamber incorporated by reference all of the relevant analysis it undertook elsewhere into the section specifically addressing the nexus requirement, the Appeals Chamber notes that the Trial Judgement must be considered as a whole. When considered as a whole, it is clear from the Trial Judgement that the requisite nexus analysis was indeed undertaken in paragraphs 590 to 616. For each of the three categories of killings the Trial Chamber considered – the camp killings, the convoy killings and the municipality killings – the Trial Chamber sufficiently demonstrated that the Appellant’s Article 3 crimes were linked to the armed conflict.

345. The Trial Chamber found that the convoy and municipality killings occurred in and between various villages in the Prijedor region from May to July 1992.⁷²³ The killings were therefore geographically and temporally linked with the armed conflict which the Trial Chamber found to exist in the Prijedor Municipality between 30 April and 30 September 1992.⁷²⁴ The Trial Chamber also found that the crimes with which the Appellant was charged were linked to the conflict on the basis of evidence presented at trial. Chief among this evidence was the Trial Chamber’s finding that the war effort in Prijedor was overseen, directed and co-ordinated by the Appellant as President of the Crisis Staff.⁷²⁵ Indeed, the Trial Chamber’s findings make clear that the very existence of the Crisis Staff (later called the War Presidency) was a function of the conflict; it was there to organise “defence activities”.⁷²⁶ All of the crimes the Appellant carried out through his role as President of the Crisis Staff were thus, in effect, carried out “under the guise of the armed conflict”.

346. The Appeals Chamber reiterates that a Trial Chamber may draw its own reasonable conclusions based on the facts of the case before it, and is not bound by the factual findings of another case. The Trial Chamber in the Akayesu case found that evidence that Akayesu wore a military jacket, carried a rifle, assisted the military on their arrival in Taba and allowed the military to use his office was insufficient to establish a nexus between Akayesu and the armed conflict.⁷²⁷ That case involved very different factual circumstances, however, and is of no import here. The Appeals Chamber finds that the Trial Chamber reasonably drew its conclusions that a nexus existed on the facts before it.

347. The Appellant’s contention that there was not a sufficient connection shown between himself and the police, who were the direct perpetrators of many of the crimes for which he was found guilty as a co-perpetrator, is also unconvincing. The relevant question is whether the Appellant’s acts were connected to the armed conflict – not to a particular group. In any event, it was adequately shown that there was co-ordination between the police and the military in conducting the armed conflict in Prijedor during the time-period in the Indictment. The Trial Chamber found that a police report demonstrated that the Crisis Staff made the decision to invade Hambarine and that the Appellant himself stated: “we made a decision that the army and the police go up there [Kozarac]…”.⁷²⁸ In addition, in its discussion of the mens rea for murder pursuant to Article 3, the Trial Chamber references Section III.B.2 of the Trial Judgement (paras 469 -498), which describes the co-ordinated acts of the Appellant and prominent members of the police and military to consolidate Serbian control in Prijedor.⁷²⁹ These findings adequately demonstrate that the Appellant acted under the guise of armed conflict in conjunction with the police as well as the military.

348. Finally, even if there were a time discrepancy between the Prijedor killings and the three events referred to in paragraph 576 of the Trial Judgement, this inconsistency would not undermine the nexus finding, as those prior events are sufficiently linked to the later crimes for which the Appellant was convicted.⁷³⁰ Both the ultimatum to the residents of Hambarine and the attack on Kozarac occurred in May 1992, during the period of armed conflict considered by the Trial Chamber.⁷³¹ Further, as stated above, a more detailed consideration of the connections between the Appellant’s crimes and the armed conflict was given by the Trial Chamber in other sections of the Judgement.⁷³²

349. In light of the foregoing, the Appeals Chamber finds that the Trial Chamber’s conclusion that the crimes for which the Appellant has been found guilty were closely related to the armed conflict is not in error.
     X. THE APPELLANT’S SEVENTH AND THE PROSECUTION’S FOURTH GROUNDS OF APPEAL : CUMULATIVE CONVICTIONS

350. Both the Prosecution and the Appellant advance grounds of appeal alleging that the Trial Chamber erred in law in its application of the law on cumulative convictions. As both appeals overlap to a significant degree, the Appeals Chamber will deal with both appeals in this section.
     A. Arguments of the parties
     1. Prosecution’s Appeal

351. The Trial Chamber declined to enter convictions for murder and deportation in light of its conviction for persecutions based on, inter alia, the same underlying acts. It reasoned that the crime of persecutions most accurately captured the nature of the Appellant’s criminal conduct taken as a whole.⁷³³ The Prosecution argues that the Trial Chamber does not have the discretion to choose among convictions on this basis. Here, it argues, it is appropriate to enter multiple convictions based on the same underlying acts because the standard set in the Celebici Appeal Judgement is satisfied: each of the crimes comprises at least one materially distinct element that is not present in the other. The Prosecution notes that the discriminatory intent requirement for persecutions is not required for murder or deportation, and that the actus reus elements for murder and deportation are not required for persecutions.⁷³⁴

352. The Prosecution also submits that each of the crimes listed as a crime against humanity under Article 5 of the Statute seeks to protect different social interests and values,⁷³⁵ and that the materially distinct elements of each crime reflect these different social interests and values.⁷³⁶ For example, the crime of deportation reflects the right to freedom of movement and the crime of persecutions protects the identity of political, racial and religious groups.⁷³⁷ The Prosecution argues that the protected legal values should be considered when determining whether cumulative convictions would promote the interests of justice.⁷³⁸

353. The Appellant responds that as the Celebici Appeal Judgement adopted the test for cumulative convictions as stated in the case of Blockburger v. United States,⁷³⁹ it thereby accepted the rationale and ramifications of the test as reflected in the jurisprudence of the United States Supreme Court.⁷⁴⁰ The Appellant submits that in this context a “societal values” analysis has no role to play in the application of the Blockburger test.⁷⁴¹ Moreover, he submits that, in determining whether the “materially distinct element ” test is satisfied, it is necessary to focus on the substantive elements of the crime and not on the chapeau requirements.⁷⁴² A proper application of the test leads to the conclusion that he should not be cumulatively convicted for the crimes of murder, deportation and persecutions set out in Count 3, 6 and 7 of the Indictment as they arise out of the same purported conduct and describe the same or similar criminal acts.⁷⁴³
     2. Appellant’s Appeal

354. In his own appeal, the Appellant argues that the Trial Chamber was correct in holding that, where the same facts underlie charges of persecutions and another crime against humanity, the persecutions charge will always be more specific and the other charge should thus be dismissed. He contends, however, that the Trial Chamber failed to apply this holding correctly, in that it convicted him cumulatively for both persecutions and extermination as a crime against humanity based on the same facts.⁷⁴⁴ In response, the Prosecution reiterates that the Celebici test should govern, and observes that extermination and persecutions each comprise at least one materially distinct element: extermination requires mass killing, while persecutions requires discriminatory intent.⁷⁴⁵
     B. Discussion

355. The two-pronged legal test to be applied in determining whether cumulative convictions are permissible was established by the Appeals Chamber in the Celebici Appeal Judgement (“Celebici test”), which stated:

     Having considered the different approaches expressed on this issue both within this Tribunal and other jurisdictions, this Appeals Chamber holds that reasons of fairness to the accused and the consideration that only distinct crimes may justify multiple convictions, lead to the conclusion that multiple criminal convictions entered under different statutory provisions but based on the same conduct are permissible only if each statutory provision involved has a materially distinct element not contained in the other. An element is materially distinct from another if it requires proof of a fact not required by the other.

     Where this test is not met, the Chamber must decide in relation to which offence it will enter a conviction. This should be done on the basis of the principle that the conviction under the more specific provision should be upheld. Thus, if a set of facts is regulated by two provisions, one of which contains an additional materially distinct element, then a conviction should be entered only under that provision.⁷⁴⁶

356. Whether the same conduct violates two distinct statutory provisions is a question of law.⁷⁴⁷ Therefore, the Celebici test focuses on the legal elements of each crime that may be the subject of a cumulative conviction rather than on the underlying conduct of the accused.⁷⁴⁸ The Kordic Appeal Judgement explained that:

     When applying the Celebici test, what must be considered are the legal elements of each offence, not the acts or omissions giving rise to the offence. What each offence requires, as a matter of law, is the pertinent inquiry. The Appeals Chamber will permit multiple convictions for the same act or omission where it clearly violates multiple distinct provisions of the Statute, where each statutory provision contains a materially distinct element not contained in the other(s), and which element requires proof of a fact which the elements of the other statutory provision(s) do not. The cumulative convictions test serves twin aims: ensuring that the accused is convicted only for distinct offences, and at the same time, ensuring that the convictions entered fully reflect his criminality.⁷⁴⁹

     For the purposes of applying the Celebici test, the legal elements of the crime include the chapeau requirements of the particular crime.⁷⁵⁰

357. The test is clear, and the Appeals Chamber considers it unnecessary to deal with the peripheral submissions of the parties concerning tests in domestic jurisdictions or the underlying social values and interests reflected in particular crimes.⁷⁵¹

358. The law on cumulative convictions as established in the Celebici Appeal Judgement was correctly stated by the Trial Chamber in the Trial Judgement.⁷⁵² However, the Trial Chamber went on to further qualify the test, stating that “in the exercise of its discretion, [the Chamber would] convict only in relation to the crime that most closely and most comprehensively reflects the totality of the accused’s criminal conduct”.⁷⁵³ In the view of the Appeals Chamber, such an exercise of discretion constitutes an error of law. When the evidence supports convictions under multiple counts for the same underlying acts, the test as set forth in Celebici and Kordic does not permit the Trial Chamber discretion to enter one or more of the appropriate convictions, unless the two crimes do not possess materially distinct elements.
     1. The application of the cumulative convictions test.

     (a) Murder as a crime against humanity and persecutions

359. The permissibility of cumulative convictions for the crimes of murder as a crime against humanity under Article 5(a) of the Statute and persecutions as a crime against humanity under Article 5(h) of the Statute was specifically considered in the Kordic Appeal Judgement. The Appeals Chamber found in that case that the crime of persecutions requires a materially distinct element to be proven that is not present as an element in the crime of murder, namely proof that an act or omission discriminates in fact and that the act or omission was committed with specific intent to discriminate.⁷⁵⁴ The crime of murder was held to require proof of a materially distinct element that is not required to be proven in establishing the crime of persecutions – proof that the accused caused the death of one or more persons.⁷⁵⁵ Therefore, cumulative convictions for the crimes of murder as a crime against humanity under Article 5(a) of the Statute and persecutions as a crime against humanity under Article 5(h) of the Statute are permissible. The Trial Chamber erred in finding otherwise.

     (b) Deportation and persecutions

360. The crime of persecutions requires a materially distinct element to be proven that is not present as an element in the crime of deportation, namely proof that an act or omission discriminates in fact and that the act or omission was committed with specific intent to discriminate.⁷⁵⁶ The crime of deportation requires proof of a materially distinct element that is not required to be proven in establishing the crime of persecutions – proof that the accused forcibly displaced civilians across a border.⁷⁵⁷ Therefore, cumulative convictions are permissible for the crimes of deportation as a crime against humanity under Article 5(d) of the Statute and persecutions as a crime against humanity under Article 5(h) of the Statute. The Trial Chamber erred in finding otherwise.

     (c) Other inhumane acts (forcible transfer) and persecutions

361. Although the Trial Chamber did not enter a conviction for the “other inhumane act” of forcible transfer (hereinafter “other inhumane acts”) and thus did not apply the Celebici test to the distinction between this crime and that of persecutions, the Appeals Chamber has established above that the Trial Chamber erred in not entering a conviction for other inhumane acts. As a result, the Appeals Chamber proceeds to this analysis.

362. The crime of persecutions requires a materially distinct element to be proven that is not present as an element in the crime of other inhumane acts, namely proof that an act or omission discriminates in fact and that the act or omission was committed with specific intent to discriminate. The crime of other inhumane acts requires proof of a materially distinct element that is not required to be proven in establishing the crime of persecutions – namely proof of an act or omission causing serious mental or physical suffering or injury or constituting a serious attack on human dignity. Therefore, cumulative convictions are permissible for the crimes of other inhumane acts as a crime against humanity under Article 5(i) of the Statute and persecutions as a crime against humanity under Article 5(h) of the Statute.

     (d) Extermination and persecutions

363. In apparent contradiction to its own conclusion that the crime of persecutions will always be the more specific crime where more than one crime under Article 5 of the Statute is established, the Trial Chamber convicted the Appellant for the crime of extermination on the basis that it “reflect[s] the totality of the accused’s culpable conduct directed both at individual victims and at groups of victims on a large scale”.⁷⁵⁸ As stated above, the test applied by the Trial Chamber was erroneous. The Appeals Chamber therefore proceeds to conduct a proper application of the Celebici test.

364. The crime of persecutions requires a materially distinct element to be proven that is not present as an element in the crime of extermination, namely proof that an act or omission discriminates in fact and that the act or omission was committed with specific intent to discriminate. The crime of extermination under Article 5 (b) of the Statute requires an element that is not required to be proven in establishing the crime of persecutions – namely proof that the acts of the accused caused the death of a large number of people. Therefore, cumulative convictions for the crimes of extermination as a crime against humanity under Article 5(b) of the Statute and persecutions as a crime against humanity under Article 5(h) of the Statute are permissible.
     2. The effect of the errors of law

365. It remains for the Appeals Chamber to consider the permissibility of cumulative convictions for deportation, other inhumane acts (forcible transfer), murder, and extermination, where the underlying acts or omissions are the same.

366. As may be seen from the paragraphs above, the crimes of deportation, other inhumane acts and extermination all require proof of materially distinct elements not required by the other crimes. The crime of deportation requires proof that the accused participated in the forcible displacement of civilians across a border.⁷⁵⁹ The crime of other inhumane acts requires proof of an act or omission causing serious mental or physical suffering or injury or constituting a serious attack on human dignity.⁷⁶⁰ The crime of extermination is the act of killing on a large scale.⁷⁶¹ However, the crime of murder does not require any material elements to be proven over and above those required for the crime of extermination. Therefore, where the elements of the crimes of murder under Article 5(a) of the Statute and extermination under Article 5(b) of the Statute are established on the basis of the same underlying facts, the crime of extermination is considered the more specific crime and cumulative convictions under Articles 5(a) and 5(b) of the Statute are thus impermissible.⁷⁶²

367. In summary, a proper application of the cumulative convictions test in this case allows convictions to be entered for the Article 5 crimes of extermination, deportation, other inhumane acts and persecutions. A conviction cannot be entered for the crime of murder under Article 5 as this crime is impermissibly cumulative with the crime of extermination. The effect, if any, of this finding on sentencing will be considered under the section dealing with that ground of appeal.
     XI. THE APPELLANT’S SIXTH GROUND OF APPEAL: SENTENCING

368. As his sixth ground of appeal, the Appellant submits that the Trial Chamber committed a discernible error in imposing a life sentence and requests a new trial on sentencing or, in the alternative, a significantly reduced sentence.⁷⁶³ The arguments advanced by the Appellant are addressed in the following sections.
     A. Alleged misconduct of the Prosecution

369. The Appellant argues that the Trial Chamber did not adequately take into account in sentencing the shortcomings and misconduct of the Prosecution as outlined in paragraph 13 of the Trial Judgement.⁷⁶⁴ The Prosecution responds that there is no evidence or finding of alleged misconduct. The Prosecution submits that the Trial Chamber observed that there were certain shortcomings on the issue of disclosure of Rule 68 material which the Trial Chamber remedied and which has no bearing on sentencing.⁷⁶⁵ In reply, the Appellant submits that the Trial Chamber noted the Prosecution's shortcomings because it was troubled by the “sharp trial tactics and self governance used by the Prosecution in refusing to tender evidence”.⁷⁶⁶

370. The Appeals Chamber notes that the Appellant is correct in submitting that the Trial Chamber expressed its concerns about the shortcomings of the Prosecution in the presentation of “certain available and crucial evidence”.⁷⁶⁷ It is also true, however, that, as noted by the Prosecution, the Trial Chamber did take action to remedy these shortcomings such as calling witnesses proprio motu pursuant to Rule 98 and ordering the Prosecution to produce additional evidence.⁷⁶⁸ The Appellant has not demonstrated in his rather scant submissions the legal basis on which the Trial Chamber should have taken these shortcomings into account as a mitigating factor, in view of the fact that the Trial Chamber had already taken action to remedy them. In view of the foregoing, the Appeals Chamber finds that the Appellant has failed to show that the Trial Chamber committed a discernible error. For this reason, this argument is dismissed.
     B. Alleged failure to hear an expert criminologist or psychiatrist

371. The Appellant argues that the Trial Chamber erred in refusing to hear the evidence of an expert criminologist or psychiatrist which would have been relevant to sentencing as it related to his propensity to commit crimes.⁷⁶⁹ The Appellant refers to the Dragan Nikolic Sentencing Judgement, where the Trial Chamber relied on such an expert to reduce the accused’s sentence from life imprisonment to 23 years.⁷⁷⁰ The Appellant claims that such evidence was essential to this case and would have led to a lesser sentence.⁷⁷¹

372. As the Prosecution notes, the Appellant agreed during the trial to strike from his list of witnesses a medical expert⁷⁷² and a forensic criminal expert.⁷⁷³ The Trial Chamber made clear to the Appellant that he could in any case, pursuant to Rule 73ter(F), seek additional time to call a medical expert at a later stage.⁷⁷⁴ The Appellant did not do so and cannot expect the Appeals Chamber to compensate for his own failure at trial. Furthermore, as to the comparison with the Nikolic case, the Appeals Chamber recalls that the Trial Chamber had the discretion to determine which experts it wanted to hear depending on the circumstances of the case before it and that it is therefore not bound to follow the approaches adopted in other cases. For these reasons, the Appeals Chamber finds that the Trial Chamber did not commit a discernible error. This argument is dismissed.
     C. Allegation that the sentence of life imprisonment be limited to the gravest of crimes

373. The Appellant argues that the maximum sanction of life in prison should be reserved for situations where an individual is found to have personally committed the most serious crime possible, namely genocide.⁷⁷⁵ He claims that imposing the maximum sanction to lesser offences than genocide may undermine deterrence, leading to the commission of graver crimes because the sanctions would be the same.⁷⁷⁶

374. The Prosecution submits that there is no jurisprudence from the Tribunal to support the claim that life imprisonment is reserved only for persons convicted of genocide⁷⁷⁷ and that the Trial Chamber’s consideration of retribution and deterrence is consistent with the approach adopted in other cases.⁷⁷⁸

375. The Appeals Chamber stresses that there is no hierarchy of the crimes within the jurisdiction of the Tribunal and that, contrary to what the Appellant alleges, the sentence of life imprisonment can be imposed in cases other than genocide. Under Rule 101(A) of the Rules, the maximum penalty is life imprisonment, and this can be imposed for any of the crimes under the Tribunal’s Statute. The concrete gravity of the crime remains “the litmus test” in the imposition of an appropriate sentence.⁷⁷⁹ The Trial Chamber’s duty remains to tailor the penalty to fit the individual circumstances of the accused and the gravity of the crime.⁷⁸⁰ By doing so, Trial Chambers contribute to the promotion of and respect for the rule of law and respond to the call from the international community to end impunity “while ensuring that the accused are punished solely on the basis of their wrongdoings and receive a fair trial”.⁷⁸¹ The Appeals Chamber considers that it is by imposing sentences in line with these principles and not by making abstract distinctions among crimes as suggested by the Appellant, that the principles of retribution and deterrence are fully respected. In this case, the Appellant was convicted as a co-perpetrator of extremely serious crimes, including an extermination campaign that the Trial Chamber estimated killed approximately 1,500 people in Prijedor municipality.⁷⁸² The Appeals Chamber considers that it was consistent with the above-outlined principles, and therefore within the Trial Chamber’s discretion, to decide that a life sentence was appropriate for this crime.

376. For these reasons, the Appeals Chamber finds that the Appellant has failed to demonstrate that the Trial Chamber committed a discernible error in the imposition of a life sentence. The Appellant’s argument is therefore dismissed.
     D. The principle of proportionality and the sentencing practices of the Tribunal and of the ICTR

377. The Appellant asserts that the Trial Chamber failed to adequately consider the principle of proportionality and ignored his submissions on this issue.⁷⁸³ The Appellant points to the fact that he was convicted as an indirect co-perpetrator and that the other defendants who personally perpetrated the crimes received much lighter sentences.⁷⁸⁴ The Appellant submits that many cases from the ICTR, World War II Tribunals and this Tribunal support the proposition that his sentence was excessive.⁷⁸⁵

378. The Appellant submits that the principle of proportionality requires that the sentences imposed against the other “indirect” perpetrators be analysed in order to harmonise his sentence with theirs.⁷⁸⁶ In particular, he observes that the sentences given to defendants Kvocka, Krnojelac, Mucic, Todorovic, and Plavsic ranged between seven and eleven years even though, he contends, those individuals’ culpability was the same or greater than his own ; he also cites the 35 year sentence given to defendant Krstic.⁷⁸⁷ The Appellant also maintains that indirect perpetration is a lesser form of culpability equivalent to aiding and abetting, and cites the Vasiljevic Appeal Judgement’s holding that “aiding and abetting is a form of responsibility which generally warrants lower sentences than responsibility as a co-perpetrator.”⁷⁸⁸

379. The Prosecution contends that the Trial Chamber based its reasoning on both the Appellant’s role and the gravity of the offences⁷⁸⁹ and that it therefore did consider the principle of proportionality.⁷⁹⁰ It notes how the Trial Chamber referred to the Appeals Chamber’s jurisprudence⁷⁹¹ in support of its position that the final sentence imposed in other cases can be of little assistance in this case⁷⁹² and argues that the Appellant has failed to establish that the Trial Chamber erred in characterising this case as “unique”.⁷⁹³

380. The Appeals Chamber wishes to clarify that, as noted by the Trial Chamber,⁷⁹⁴ the fact that an accused is found guilty as an “indirect co-perpetrator” does not in itself entitle him to a lower sentence. It is settled in the jurisprudence of the Tribunal that the length of the sentence depends first of all on the gravity of the crime and that "[t]he determination of the gravity of the crime requires a consideration of the particular circumstances of the case, as well as the form and degree of the participation of the accused in the crime.”⁷⁹⁵ Moreover, the Appeals Chamber notes that the role of the “indirect co-perpetrators ” can be very significant, particularly in cases of large scale crimes which could not be committed without the help of the indirect co-perpetrators in such ways as planning, instigating, co-ordinating or organising. Such is the case of the Appellant. In finding that the Appellant was an “indirect co-perpetrator”, the Trial Chamber did not suggest that the Appellant had a limited role in the events unfolding in the Municipality of Prijedor. Quite to the contrary, throughout its judgement the Trial Chamber took care to explain the relevance of the role of the Appellant in the implementation of the common criminal goal. For instance, the Trial Chamber found that the Appellant

     …played a unique pivotal role in co-ordinating the persecutory campaign carried out by the military, police and civilian government in Prijedor.⁷⁹⁶

     Furthermore, the Appeals Chamber has clarified above that the role of the Appellant was in fact that of a participant in the joint criminal enterprise⁷⁹⁷ and that his role in the commission of the crimes underlying the Common Purpose was by no means minimal. For this reason, the Appeals Chamber concludes that the role the Appellant played as an “indirect co-perpetrator” did not justify the imposition of a lower sentence.

381. As to the comparison the Appellant draws with other cases, the Appeals Chamber recalls that “[a] previous decision on sentence may provide guidance if it relates to the same offence and was committed in substantially similar circumstances”.⁷⁹⁸ However, the Appeals Chamber also reiterates that “while [it] does not discount the assistance that may be drawn from previous decisions rendered, it also concludes that this may be limited.”⁷⁹⁹ The reason for this limitation is set out in Article 24(2) of the Statute which requires the Trial Chamber to take into account the gravity of the offence and the individual circumstances of the convicted person in imposing a sentence.

382. The Trial Chamber did take into account the Appellant’s argument pertaining to a comparison with other cases.⁸⁰⁰ It compared all the cases mentioned by the Appellant, apart from the Krstic case, but found that comparisons with such cases were inappropriate as the Appellant’s case was of a “unique” nature.⁸⁰¹ The Appeals Chamber notes that the Krstic case can be distinguished from the instant case: Krstic was found guilty for aiding and abetting a joint criminal enterprise, while the Appellant participated in the common plan of a joint criminal enterprise, was aware that the crimes were a possible consequence of the execution of the Common Purpose and nevertheless acted in furtherance thereof.

383. In view of the foregoing, the Appeals Chamber finds that the Appellant has failed to show that the Trial Chamber committed a discernible error in concluding that his case could not be compared with other cases. Accordingly, this sub-ground of appeal is dismissed.
     E. Allegation that the sentence was imposed because the Appellant was found guilty by association

384. The Appellant argues that the Trial Chamber “repeatedly engage[d] in guilt by association” by considering him together with police, military and other leaders ⁸⁰² and that this prejudice is specifically demonstrated by the Trial Chamber’s approach to the Omarska camp.⁸⁰³ He submits that there was conflicting evidence concerning whether the Appellant was part of a delegation to the Omarska centre. Although the Trial Chamber indicated that there was not enough evidence to show that the Appellant had in fact visited the camp, the Trial Chamber speculated that the Appellant must have arrived in a subsequent automobile and joined the other persons touring the camp and held that he had knowledge of and actively engaged in the operation of the camp.⁸⁰⁴

385. The Prosecution argues that the Appellant was found guilty not by association, but rather because of his acts and role in co-ordinating the co-operation between the police, military and politicians⁸⁰⁵ and that the Trial Chamber relied on evidence other than the alleged visit to Omarska camp to conclude that the Appellant had knowledge of the crimes committed there.⁸⁰⁶ The Appellant replies that the Prosecution fails to recognise the graduation of sentence and the importance of assessing the responsibility of alleged co-indictees.⁸⁰⁷

386. The Appeals Chamber fails to see how the arguments raised by the Appellant reveal that he has been found “guilty by association”. First, as to the circumstances of the Appellant’s visit to Omarska, the Appeals Chamber notes that the Trial Chamber came to the conclusion that it was not proven beyond reasonable doubt that the Appellant was “among the members of the delegation visiting the Omarska camp”.⁸⁰⁸ Second, the role of the Appellant in relation to the detention facilities as spelled out in the Trial Judgement reveals much more than “guilt by association”: the Trial Chamber found that the Crisis Staff – presided over by the Appellant – had a “management and oversight function in relation to the camps”.⁸⁰⁹ Finally, the Trial Chamber made clear that it would determine the appropriate sentence “only according to the specific and individual role of the Accused in the commission of the offences” and that “the possible responsibility of deceased co-indictees will not influence the sentence to be pronounced against Dr. Stakic.”⁸¹⁰

387. In light of these considerations, the Appeals Chamber finds the Appellant has failed to show that the Trial Chamber found the Appellant guilty by association. The arguments of the Appellant are therefore dismissed.
     F. Whether the Trial Chamber imposed a minimum sentence

388. The Appellant submits that the Trial Chamber committed a discernible error by (1) effectively imposing a minimum sentence on him; (2) imposing conditions on the review of that sentence⁸¹¹ when such authority is reserved to the relevant Host State⁸¹²; and (3) usurping⁸¹³ the competence vested in the President of the Tribunal to ultimately decide such matters.⁸¹⁴

389. The Prosecution argues that, as expressly acknowledged by the Trial Chamber, Rules 123 to 125 of the Rules remain unaffected by the Disposition, that the Host States remain competent to notify the Tribunal of the Appellant’s eligibility for pardon or commutation of sentence under their municipal laws, and that the President of the Tribunal retains the discretionary power to grant pardon or commutation.⁸¹⁵

390. In sentencing the Appellant to life imprisonment, the Trial Chamber stated that:

     The then competent court … shall review this sentence and if appropriate suspend the execution of the remainder of the punishment of imprisonment for life and grant early release, if necessary on probation, if: … 20 years have been served calculated in accordance with Rule 101(C) from the date of Dr. Stakic’s deprivation of liberty for the purposes of these proceedings, this being the “date of review ”.⁸¹⁶

391. Contrary to the Appellant’s contention, the Appeals Chamber holds that the Disposition does not impose a minimum sentence on the Appellant and does not preclude a review of the Appellant’s sentence before he has served 20 years; indeed, the Trial Chamber made it clear that provisions relevant to sentences remain unaffected by the Disposition.⁸¹⁷ According to the Rules, should the laws of the Host State allow for the pardon or commutation of the Appellant’s life sentence before 20 years have passed, then the Host State shall notify the Tribunal of such eligibility (Rule 123 of the Rules ) and the President of the Tribunal shall determine whether pardon or commutation is appropriate (Rule 124 of the Rules). In this regard, therefore, the Trial Chamber did not commit any discernible error.

392. On the other hand, the Appeals Chamber finds that the Disposition appears to impose a “20-year review obligation” on the Host State. This is inconsistent with the regime set forth in the Statute and Rules. The Statute,⁸¹⁸ Rules,⁸¹⁹ relevant Practice Direction,⁸²⁰ and Model Agreement for enforcing sentences⁸²¹ each provide that eligibility of a convicted person for pardon, early release or commutation of sentence is determined by the law of the State in which the convicted person is serving his sentence.⁸²² These instruments also define the precise nature of the supervisory role of the Tribunal in this situation, granting the President of the Tribunal the power to make a final determination in each case.⁸²³ The Appeals Chamber is of the view that imposing a 20-year review obligation on the courts of the Host State is contrary to these provisions as it imposes on the Host State both the date of review⁸²⁴ and the relevant considerations when conducting the review,⁸²⁵ thereby supplanting applicable municipal laws. Further, by vesting the courts of the Host State with the power to suspend the sentence, the Trial Chamber effectively removes the power from the President of the Tribunal to make the final determination regarding the sentence.

393. The Appeals Chamber finds that the Trial Chamber acted ultra vires in imposing a review obligation on the Host State and therefore committed a discernible error. The related part of the Trial Judgement’s Disposition must be set aside. This error was clearly relevant to the determination of the sentence and, therefore, the Appeals Chamber will take it into account when revising the Appellant’s sentence.
     G. Alleged violation of the prohibition against cruel, inhumane and degrading  punishment

394. The Appellant argues that in his case a life sentence constitutes a form of punitive retribution rather than social rehabilitation, and as such constitutes cruel, inhumane and degrading punishment.⁸²⁶ In support of this argument, the Appellant asserts that many States, including the former Yugoslavia, do not allow for life sentences because they are considered cruel, inhumane and degrading.⁸²⁷ In addition, the Appellant argues that a sentence of life imprisonment is incompatible with the essential aims of reformation and social rehabilitation set forth in Article 10 of the ICCPR.⁸²⁸

395. The imposition of a life sentence is envisaged in Rule 101(A) of the Rules. Where the crimes for which an accused is held responsible are particularly grave, the imposition of a life sentence does not constitute a form of inhumane treatment but, in accordance with proper sentencing practice common to many countries, reflects a specific level of criminality. Neither Article 7 nor Article 10 of the ICCPR prohibits life imprisonment. Nor has the Appellant shown the existence of a rule in international criminal law prohibiting the imposition of life imprisonment. For the foregoing reasons, the Appeals Chamber finds that the Appellant has failed to show that the Trial Chamber committed a discernible error in imposing the sentence of life imprisonment. This argument is accordingly dismissed.
     H. Alleged failure to consider the sentencing practice in the courts of the former Yugoslavia

396. The Appellant argues that the Trial Chamber erroneously concluded that the maximum sentence under the laws of the former Yugoslavia was life imprisonment.⁸²⁹ The Appellant contends that had the Trial Chamber consulted legal scholars it would have sentenced the Appellant to 20 years’ imprisonment, which is the maximum under the penal code of the SFRY.⁸³⁰ The Appellant submits that in exceeding this maximum sentence, the Trial Chamber attempted to re-write the law of the SFRY,⁸³¹ violating the principles of nullum crimen sine lege and nulla poena sine lege, which prohibit retroactive crimes and punishments.⁸³² Further, the Appellant asserts that in failing to ascertain the correct maximum sentence, the Trial Chamber denied him the right to be fully informed⁸³³ and denied the Appellant a fair trial.⁸³⁴

397. The Prosecution responds that the sentencing practice of the former Yugoslavia is only one factor to be taken into account when imposing a sentence, that it is within the Trial Chamber’s discretion to decide on the weight to be accorded to it⁸³⁵ and that the Trial Chamber did take this factor into account.⁸³⁶

398. Article 24(1) of the Statute provides that in determining a sentence “Trial Chambers shall have recourse to the general practice regarding prison sentences in the courts of the former Yugoslavia”. It is settled jurisprudence of the Tribunal that this provision of the Statute “does not oblige the Trial Chambers to conform to that practice; it only obliges the Trial Chambers to take account of that practice ”.⁸³⁷ The Trial Chamber acted in accordance with the settled jurisprudence and the applicable law of this Tribunal. Moreover, the Trial Chamber did not claim that courts in the former Yugoslavia would have imposed a sentence of life imprisonment for these offences; rather, the Trial Chamber stated that those courts would have imposed the death penalty or a sentence of greater than five years’ imprisonment, with the possibility of substituting a twenty-year term for a death sentence.⁸³⁸ It took into account the general practice regarding prison sentences in the former Yugoslavia⁸³⁹ but did not decide the sentence as if it were bound by it. The Trial Chamber correctly established that the maximum sentence to be imposed by the Tribunal is life imprisonment, as provided for by Rule 101(A) of the Rules.⁸⁴⁰ Because the Trial Chamber was bound to apply the law of this Tribunal and not that of the former Yugoslavia, the Appellant’s contention that the Trial Chamber attempted to re-write the law of the SFRY and by doing so violated the principles of nullum crimen sine lege and nulla poena sine lege is without merit.

399. In view of the foregoing, the Appeals Chamber finds that the Trial Chamber did not commit a discernible error, and the argument of the Appellant is dismissed.
     I. Whether the Trial Chamber erred when it relied exclusively on the principles of deterrence and retribution

400. The Appellant asserts that the Trial Chamber relied on the principles of retribution and deterrence at the expense of other important sentencing factors, including rehabilitation, reintegration into society, proportionality and consistency,⁸⁴¹ which should have been applied to ensure that the severity of the sentence fit not only the gravity of the crime, but the individual level of culpability and participation.⁸⁴² The Appellant asserts that “ [i]mposing the maximum sanction on an individual who never had the propensity, before or after, to act in a criminal manner unjustifiably and without reason extinguishes the fundamental societal goal of sentencing, namely the rehabilitation of the individual defendant.”⁸⁴³

401. The Prosecution asserts that reliance on retribution and deterrence is consistent with the jurisprudence of the Tribunal and the ICTR,⁸⁴⁴ that there was no requirement that the Trial Chamber make specific reference to rehabilitation in the Trial Judgement⁸⁴⁵ and that the jurisprudence of the Tribunal indicates that rehabilitation cannot play a predominant role.⁸⁴⁶

402. The Appeals Chamber notes that the Trial Chamber first emphasised that “[t]he individual guilt of an accused limits the range of the sentence” and then stated that “[o]ther goals and functions can only influence the range within the limits defined by the individual guilt”.⁸⁴⁷ It then considered “retribution” and “deterrence” as “general factors to be taken into account when imposing sentence”.⁸⁴⁸ The Trial Chamber did consider some elements of rehabilitation, such as the Appellant’s personal and individual situation, in determining his sentence.⁸⁴⁹ The Trial Chamber found that, given the serious nature of the crimes, those factors did not carry enough weight to alter the sentence.⁸⁵⁰ It also considered the principles of equality before the law,⁸⁵¹ re-integration as part of deterrence,⁸⁵² and proportionality.⁸⁵³ The Appeals Chamber notes that the jurisprudence of the Tribunal⁸⁵⁴ and the ICTR⁸⁵⁵ consistently points out that the two main purposes of sentencing are deterrence and retribution. Other factors, such as rehabilitation, should be considered but should not be given undue weight.⁸⁵⁶ The Appeals Chamber therefore finds that the approach of the Trial Chamber is consistent with the jurisprudence of the Tribunal and the ICTR. As a result, the Trial Chamber did not commit a discernible error, and the argument of the Appellant is dismissed.
     J. Whether the Trial Chamber failed to give adequate weight to evidence of mitigating circumstances

403. The Appellant argues that the Trial Chamber erred in failing to give adequate weight to mitigating factors. According to the Appellant, the Trial Chamber considered four specific mitigating factors but failed to give any weight to them in sentencing : the Appellant’s consent to the appointment of a new Judge on 1 October 2002; the Appellant’s behaviour towards certain witnesses; his personal situation including young age⁸⁵⁷ and family concerns; and his personality.⁸⁵⁸ The Appellant asserts that the Trial Chamber failed to consider other relevant mitigating factors : prior good character, no criminal record, good character after the alleged events and demeanour in detention.⁸⁵⁹

404. The Prosecution responds that the Trial Chamber did consider the first three mitigating factors listed by the Appellant but concluded that they did not carry enough weight to alter the sentence.⁸⁶⁰ Concerning the personality and family situation of the Appellant, the Prosecution indicates that the Trial Chamber concluded that this factor should not be given undue weight in light of the severity of the crimes.⁸⁶¹ Regarding the Appellant’s demeanour while in detention, the Prosecution argues that this was taken into consideration.⁸⁶² Concerning the absence of a criminal record and good character after the alleged events, the Prosecution asserts that the Appellant failed to produce any evidence in support of such a claim⁸⁶³ and that the Trial Chamber considered all evidence in favour of his good personality.⁸⁶⁴

405. The Appeals Chamber notes that while Rule 101(B)(ii) of the Rules requires the Trial Chamber to take into account the mitigating factors when determining the sentence, the weight to be attached to these factors is discretionary.⁸⁶⁵ The Appeals Chamber finds that the above-mentioned four factors were explicitly considered by the Trial Chamber.⁸⁶⁶ With regard to the personality of the Appellant the Trial Chamber found that this could be of limited weight given the severity of the crimes.⁸⁶⁷ Similarly, with regard to the three other factors raised, the Trial Chamber found that they did not carry enough weight to alter substantially the deserved sentence.⁸⁶⁸ The Appeals Chamber finds that the Appellant has failed to show that the Trial Chamber committed a discernible error in exercising its discretion by attributing little weight to these factors.

406. The Appellant’s second argument relates to the Trial Chamber’s alleged failure to consider other mitigating factors. Contrary to the Appellant’s contention, the Trial Chamber did take account of the Appellant’s behaviour while in custody: “[t]he Trial Chamber … takes note of Dr. Stakic’s correct behaviour during the trial and in the Untied Nations Detention Unit.”⁸⁶⁹ However, the Trial Chamber did not attribute much weight to this factor and the Appellant has failed to show that this amounted to a discernible error. Concerning other potential mitigating factors, the Appeals Chamber notes that the burden of proof is on the Appellant to show that they exist.⁸⁷⁰ The Appellant has failed to do this with respect to his prior good character, lack of criminal record and good character after the alleged events. In any case, given the gravity of the crimes for which the Appellant was convicted, it is unlikely that evidence of good character prior to or following the events in question would have a significant impact on the sentence.

407. Finally, the Appellant argues that the imposition of a life sentence demonstrates that the Trial Chamber failed to properly evaluate the weight of all the mitigating factors. In Musema, the ICTR Appeals Chamber indicated that even if mitigation is found, a Trial Chamber can still impose a life sentence if the gravity of the offence requires the imposition of the maximum sentence.⁸⁷¹ Further, in the Niyitegeka Appeal Judgement, the ICTR Appeals Chamber indicated that there was no automatic reduction in a sentence as a result of mitigating factors, as the Trial Chamber need only to consider the mitigating factors in arriving at the final determination of the sentence.⁸⁷² As a result, the Appeals Chamber cannot conclude, based solely on the fact that a life sentence was imposed as the Appellant suggests, that the Trial Chamber failed to consider the mitigating factors. The Trial Chamber did consider the relevant mitigating factors, and the Appellant has not demonstrated that in weighing these factors the Trial Chamber committed a discernible error warranting the imposition of a lesser sentence. Accordingly, this sub-ground of appeal is dismissed.
     K. Aggravating factors

408. The Appellant asserts that all of the six aggravating factors considered by the Trial Chamber are subsumed in the conviction⁸⁷³ and that the Trial Chamber erred as a matter of law and abused its discretion in considering them to be aggravating factors.⁸⁷⁴ The submissions of the Appellant in relation to each of these six aggravating factors are addressed in turn.
     1. The Appellant’s superior position

409. The Appellant alleges that including his superior position as an aggravating factor violates the principles of “duplicity and multiplicity”.⁸⁷⁵ He contends that it was an error to consider his superior position in sentencing when the finding of guilt resulted from the position he held.⁸⁷⁶ The Appellant claims that the reasoning of the Trial Chamber is ambiguous and fails to properly distinguish his “individual criminal culpability from that of his purported superior/command criminal culpability.”⁸⁷⁷

410. The Prosecution maintains that the Tribunal jurisprudence⁸⁷⁸ has shown that when liability is proven under Article 7(1) of the Statute, the superior position of an accused, in the sense of Article 7(3) of the Statute, can constitute an aggravating factor.⁸⁷⁹ The Appellant replies by citing the dissenting opinion of Judge Nieto-Navia in the Galic Trial Judgement⁸⁸⁰ in support of the notion that superior position should not be used as an aggravating factor.⁸⁸¹

411. In considering the superior position in connection with Article 7(1), the Appeals Chamber recalls that it is settled in the jurisprudence of the Tribunal that superior position itself does not constitute an aggravating factor. Rather it is the abuse of such position which may be considered an aggravating factor.⁸⁸² The Appeals Chamber understands the Trial Chamber in the present case to have applied this law correctly as the Appellant did indeed abuse his superior position to commit the crimes. Furthermore when determining for sentencing purposes the gravity of the offence, the Trial Chamber considered the Appellant’s role in the crimes but did not directly rely on the position he held. It referred indirectly to that position in describing the Appellant’s involvement in the crimes, but it never suggested in the course of its discussion that the crime was graver simply because the Appellant was in a position of authority. As such the Trial Chamber did not engage in double -counting. For the foregoing reasons, the Appeals Chamber concludes that the Trial Chamber did not err in the exercise of its discretion in accepting the Appellant’s abuse of his position of authority as an aggravating circumstance. This sub-ground of appeal is therefore dismissed.
     2. Whether planning and ordering the crime of deportation is an aggravating factor

412. The Appellant contends that the inclusion of deportation as an aggravating factor violates the principles of duplicity and multiplicity, because the Trial Chamber found him guilty of deportation under Count 6 (Persecutions) as incorporating specifically the crime of deportation alleged under Count 7 of the Indictment.⁸⁸³

413. According to the jurisprudence of this Tribunal, elements which are required to prove one of the underlying charges cannot also be seen as aggravating factors when determining the sentence.⁸⁸⁴ The Trial Chamber found that the Appellant committed the crime of deportation as a co-perpetrator and considered the Appellant’s planning and ordering of deportation as an aggravating factor.⁸⁸⁵ Likewise, the Appeals Chamber has found the Appellant responsible for committing the crime of deportation via the first category of joint criminal enterprise but not for ordering and planning it. The Appellant’s role in the planning and ordering of deportation is not an element required to prove the commission of deportation. Yet, it may be taken into account as an aggravating factor because of the contribution that planning and ordering make to the commission of a crime. It furthermore may bear on the moral culpability of the perpetrator. The Appeals Chamber finds that the Trial Chamber did not commit a discernible error in considering the planning and ordering of the deportation as an aggravating factor. This sub-ground of appeal is therefore dismissed.
     3. The Appellant’s professional background

414. The Appellant contends that the Trial Chamber erred in concluding that his professional background as a physician was an aggravating factor.⁸⁸⁶ The Appellant submits that the Trial Chamber erroneously relied on the ICTR cases of Ntakirutimana⁸⁸⁷ and Kayishema and Ruzindana⁸⁸⁸ for the proposition that the professional background of an accused may constitute an aggravating factor. The Appellant avers that this was an error because the ICTR cases cited involved specific individual criminal acts perpetrated by the defendants, whereas he was convicted only because of the formal position he held.⁸⁸⁹ The Appellant distinguishes the instant case from those cases by the absence of genocide.⁸⁹⁰ Further, the Appellant argues that if his professional background was to be used as an aggravating factor, then he should have been notified so that he could have presented evidence that would have shown that he treated persons without regard to their ethnicity.⁸⁹¹

415. The Prosecution maintains that one’s professional background is a proper factor to be considered.⁸⁹² The Prosecution argues that various judgements have found that being a medical doctor can be considered as an aggravating factor for crimes against persons because these crimes constitute a betrayal of the ethical duty of a doctor to save people.⁸⁹³ Further, the Prosecution maintains that there is no duty on the Chambers or the Prosecution to inform an accused about the factors that might be considered in sentencing, and it has not been shown how submitting evidence with respect to whether the Appellant treated persons without regard to their ethnicity would have affected the use of this factor.⁸⁹⁴ The Prosecution also argues that the Trial Chamber was explicit in attaching little weight to this aggravating factor⁸⁹⁵ and would likely have imposed the same sentence on the Appellant had the professional background not been considered.⁸⁹⁶

416. For the conclusion that the Appellant’s medical background could be cited as an aggravating factor, the Trial Chamber relied on what the Trial Chambers respectively held in the Kayishema and Ruzindana and Ntakirutimana Trial Judgements.⁸⁹⁷ The Appeals Chamber does not, however, find that the two ICTR cases are persuasive precedents for the present case. In the Kayishema and Ruzindana Trial Judgement, the Trial Chamber simply stated that as a medical doctor Kayishema owed a duty to the community and that this constituted an aggravating factor⁸⁹⁸ but did not give any explanation as to the legal basis for its conclusion. The Trial Chamber in Ntakirutimana held that:

     the Chamber notes that Gérard Ntakirutimana acknowledges that he departed the hospital leaving the Tutsi patients behind. He explained that the gendarmes had directed him to leave because of increasing lack of security. The Chamber is aware that the security situation was difficult and that, for instance, Oscar Giordano left a few days earlier. However, in the Chamber’s view it is difficult to imagine why the Accused was at particular risk, compared with the remaining persons. According to his own explanation, he did not return to the hospital to inquire as to the condition of patients and staff. The overall situation leaves the Chamber with the impression that the Accused simply abandoned the Tutsi patients. This behaviour is not in conformity with the general picture painted by the Defence of the Accused as a medical doctor who cared for his patients.⁸⁹⁹

     This statement of the Trial Chamber as to the duty of a medical doctor appears to have been made in a context which is completely different from that of the case before this Appeals Chamber. Thus, while in that context the conclusion of the Trial Chamber may well be persuasive, the same is not true when the same reasoning is transplanted in a completely different context such as the case of the Appellant. Caution is needed when relying as a legal basis on statements made by Trial Chambers in the context of cases and circumstances that are wholly different. The Appeals Chamber considers that these statements by themselves provide too tenuous a basis for holding that the previous background of the Accused, and the ethical duties stemming from it, are an aggravating factor in international criminal law. While the Trial Chamber has discretion in determining factors in aggravation, the Trial Chamber must provide convincing reasons for its choice of factors. As the basis on which the Trial Chamber found the existence of this aggravating factor is rather tenuous, the Appeals Chamber finds that the Trial Chamber committed a discernible error in identifying the professional background of the Appellant as an aggravating factor. This error impacted on the Trial Chamber’s determination of the sentence and therefore the Appeals Chamber will take it into account when revising the Appellant’s sentence.

     4. Whether the Appellant was unwilling to help individuals in need

417. The Appellant submits that the Trial Chamber erred when it found⁹⁰⁰ that he was unwilling to assist certain individuals who approached him in time of need. The Appellant claims that contrary to the finding of the Trial Chamber he was unable and not unwilling to help individuals in need. As an example of his inability to help, the Appellant submits that he was unable to help his own family members. In the alternative, the Appellant argues that he was not unwilling to help but that he was truly unaware of the circumstances in the Municipality of Prijedor.⁹⁰¹ The Appellant asserts that the testimony of Witness Z illustrates how he was uninformed and confused as to why so many people were seeking to leave the municipality.⁹⁰²

418. The Prosecution maintains that a discernible error has not been shown and that dissatisfaction with the findings at trial or reliance on the evidence of one witness and not others does not constitute an error of fact.⁹⁰³ The Appellant replies that the evidence presented does not lead to a reasonable inference that the Appellant was unwilling to help others⁹⁰⁴ and that the Prosecution incorrectly presupposes that the Appellant had any power to assist others or that he had the duty to do so.⁹⁰⁵

419. The Appeals Chamber notes that the Trial Chamber relied on three witnesses’ testimonies to find that the Appellant was unwilling to help civilians. First, the Trial Chamber found that Dr. Minka Cehajic, the wife of Professor Muhamed Cehajic, attempted to contact the Appellant twice in an effort to discover the whereabouts of her husband.⁹⁰⁶ The Trial Chamber held that “the Appellant knew about these attempts by Dr. Cehajic”⁹⁰⁷ but did not help her. Second, the Trial Chamber found that Witness Z turned to the Appellant for assistance in leaving the municipality of Prijedor and that the Appellant told her to go to SUP like everybody else.⁹⁰⁸ Third, the Trial Chamber found that the Appellant refused to help Ivo Atlija leave the Municipality of Prijedor “because of accusations he faced of ‘ethnic cleansing’ ”.⁹⁰⁹

420. The Appeals Chamber agrees with the Trial Chamber that the findings relating to Dr. Cehajic, Witness Z and Ivo Atlija demonstrate that the Appellant was unwilling to help when he could have done so and considers that the inference the Trial Chamber drew was the only reasonable one given the context (a campaign of ethnic cleansing was unfolding) in which these requests for help were made, the role of the Appellant, his participation in the joint criminal enterprise and the fact that the people seeking help were non-Serbs. For these reasons and considering that the Appellant's argument that he was unable to help his family is of limited weight in this context, the Appeals Chamber finds that the Appellant has failed to demonstrate that the Trial Chamber committed a discernible error in finding that the Appellant was unwilling to help individuals in need notwithstanding the fact that he had the power to do so. This sub-ground of appeal is accordingly dismissed.
     5. “Long phase of preparation and planning”

421. The Appellant argues that the Trial Chamber erred as a matter of law and abused its discretion in concluding that a “long phase of preparation and planning” was an aggravating factor.⁹¹⁰ The Appellant asserts that in considering the long phase of planning and preparation, the Trial Chamber ignored its own finding that “only those circumstances directly related to the commission of the offence charged may be seen as aggravating.”⁹¹¹

422. The Prosecution responds that there was no error in deeming planning and preparation to be an aggravating factor.⁹¹² The Prosecution submits that acts such as planning and preparation that are intrinsically linked to a crime are directly related to the crime.⁹¹³ The Prosecution maintains that the Tribunal has found both premeditation and planning to be aggravating factors.⁹¹⁴ In addition, the Prosecution disputes the claim that the planning and preparation was part of the actus reus of the Appellant’s crimes. It believes that the actus reus of the crimes was carried out by the direct perpetrators and imputed to the Appellant in his role as an indirect co-perpetrator.⁹¹⁵

423. The Appeals Chamber does not dispute that, as noted by the Prosecution, a long phase of planning and preparation can be an aggravating factor. Although the Trial Judgement is not clear in this regard, the Appeals Chamber notes that this long phase of planning and preparation appears to have ended with the take-over of Prijedor (30 April 1992).⁹¹⁶ This phase, therefore, occurred before the relevant period of the Indictment (beginning on 30 April 1992). It is true that, as a matter of principle, there is no requirement that the Prosecution plead aggravating factors in an indictment.⁹¹⁷ It is also true that the Trial Chamber may use events concerning the “long phase of planning and preparation” as a part of its effort of explaining the events described in the Indictment. However, what the Appeals Chamber considers unfair is the use, in aggravation, of findings concerning events that are temporally outside the scope of the Indictment, without providing a reasoned opinion as to why doing so would be appropriate in the circumstances of the case. For this reason, the Appeals Chamber finds that the Trial Chamber committed a discernible error. As this error impacted on the Trial Chamber’s determination of the sentence, the Appeals Chamber will take it into account when revising the Appellant’s sentence. This sub-ground of appeal is accordingly upheld.
     6. “White collar crimes”

424. The Appellant alleges that the use of “white collar crimes”⁹¹⁸ as an aggravating factor is another example of “multiplicity”. He submits that he was found guilty because of his position in Prijedor Municipality and that this position was also used to increase the sentence for the same crime.⁹¹⁹ Further the Appellant argues that the reasoning behind the Trial Chamber’s use of this factor is both ambiguous and legally and factually flawed⁹²⁰ and that standards should not be varied depending on whether the crime is a blue collar or a white collar crime.⁹²¹ As a result, the Appellant submits that the use of “white collar crime” as an aggravating factor was an abuse of the Trial Chamber’s discretion.⁹²²

425. The Prosecution responds that aggravation on the basis of “white collar crime ” is appropriate in this case.⁹²³ The crimes committed by the person at the top of the political or military hierarchy can have far more serious consequences on a larger scale than those committed by lower level perpetrators.⁹²⁴ The Prosecution submits that in this case, the Appellant performed a vital role in the persecutory campaign which would not have been achieved without the contribution of leading politicians such as him.⁹²⁵ As a result, the aggravating consideration is justified.⁹²⁶

426. Contrary to what the Parties suggest, the Appeals Chamber does not consider that the reference to “white collar crimes” can be interpreted as an indication that the Trial Chamber really meant that the crimes committed by the Appellant were “white collar crimes” in the technical sense of the term and that this characteristic constituted per se an additional aggravating factor. Although the Trial Judgement is not particularly clear on this point, the Appeals Chamber understands the reference to “white collar crimes” as being part of the effort of the Trial Chamber to explain why it considered that the role of the Appellant in the commission of the crime was particularly serious. For this reason, the Appeals Chamber finds that the Trial Chamber did not commit a discernible error in this regard.
     L. Alleged failure to provide material concerning co-perpetrators

427. An issue was raised in the Appellant’s Reply Brief concerning an alleged failure to disclose Rule 68 materials related to alleged co-perpetrators.⁹²⁷ As it was decided that this is not a permitted ground of appeal pursuant to the decision of the Appeals Chamber on 20 July 2004,⁹²⁸ the Appeals Chamber declines to consider it further at this time.
     M. Conclusion

428. The Appeals Chamber has considered the errors made by the Trial Chamber and comes to the conclusion that their impact on the sentence has to be regarded as very limited. It takes note, however, that one of the errors concerns the sentence itself. In view of the fact that the imposition of a fixed term sentence must be revised, the Appeals Chamber finds that an appropriate sentence, properly reflecting both the criminality of the Appellant and the substance of the sentence imposed by the Trial Chamber, is 40 years’ imprisonment.
     XII. 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 4, 5 and 6 of October 2005;

     SITTING in open session;

     SETS ASIDE, proprio motu, the finding that the Appellant was responsible as a co-perpetrator and FINDS the Appellant responsible as a participant in a joint criminal enterprise, pursuant to Article 7(1) of the Statute;

     ALLOWS, Judge Güney dissenting, the Prosecution’s fourth ground of appeal, FINDS both that cumulative convictions for Murder as a Crime against Humanity (COUNT 3) and Persecutions as a Crime against Humanity (COUNT 6) are permissible, and that cumulative convictions for Deportation as a Crime against Humanity (COUNT 7) and Persecutions as a Crime against Humanity (COUNT 6) are permissible, RESOLVES that the Trial Chamber incorrectly failed to enter a conviction against the Appellant for Deportation, but FINDS, proprio motu, that a conviction for Murder as a Crime against Humanity (COUNT  3) is impermissibly cumulative with the Appellant’s conviction for Extermination as a Crime against Humanity (COUNT 4);

     DISMISSES the Prosecution’s appeal in all other respects;

     ALLOWS in part, Judge Shahabuddeen dissenting, the Appellant’s fourth ground of appeal, particularly as it concerns the Trial Chamber’s interpretation of the requirements for deportation, and VACATES, Judge Shahabuddeen dissenting, the findings of legal responsibility for certain acts of deportation specified in the judgement;

     ALLOWS, in part, the Appellant’s sixth ground of appeal concerning sentencing ;

     DISMISSES the Appellant’s appeal in all other respects;

     AFFIRMS the Appellant’s acquittal for Genocide (COUNT 1);

     AFFIRMS the Appellant’s acquittal for Complicity in Genocide (COUNT 2);

     AFFIRMS, Judge Güney dissenting, the Appellant’s conviction for Extermination, a Crime against Humanity (COUNT 4);

     AFFIRMS the Appellant’s conviction for Murder as a Violation of the Laws or Customs of War (COUNT 5);

     AFFIRMS the Appellant’s conviction for Persecutions, a Crime against Humanity (COUNT 6);

     RESOLVES, Judge Güney dissenting, that the Trial Chamber incorrectly found the Appellant not guilty for Other Inhumane Acts (Forcible Transfer), a Crime against Humanity (COUNT 8);

     IMPOSES a global sentence of 40 years’ imprisonment, subject to credit being given under Rule 101(C) of the Rules for the period the Appellant has already spent in detention;

     SETS ASIDE the Disposition of the Trial Chamber insofar as it imposed an obligation on the Host State to review the Appellant’s sentence after a specified time had elapsed;

     ORDERS in accordance with Rule 103(C) and Rule 107 of the Rules, that the Appellant is to remain in the custody of the International Tribunal pending the finalisation of arrangements for his transfer to the State in which his sentence will be served.

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Judge Fausto Pocar
Presiding

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Judge Mohamed Shahabuddeen

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Judge Mehmet Güney