I. INTRODUCTION
- 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”).
- 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
- 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
- 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
- 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.
- 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
- 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
- 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
- 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
- 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
- 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
- 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
- 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
- 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.
- 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
- 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
- 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
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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
- 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.
- 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.
- 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
- 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
- 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
- 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
- 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
- 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
- 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
- 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
- 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
- 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.
- 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
- 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
- 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
- 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.
- 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
- 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
- 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
- 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
- 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
- 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.
- 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
- 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.
- 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
- 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.
- 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
- 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
- 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
- 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.
- 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.
- 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
- 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
- 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.
- 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
- 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
- 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.
- 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
- 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.
- 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
- 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
- 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
- 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
- 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.
- 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
- 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
- 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
- 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
- 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
- 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
- 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.
- 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.
- 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?
- 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
- 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
- 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
- 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
- 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
- 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
- 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?
- 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.
- 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
- 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).
- 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.
- 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
- 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.
- 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
- 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
- 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
- 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
- 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
- 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.
- 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
- 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.
- 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
- 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.
- 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
- 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
- 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
- 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
- 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
- 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
- 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
- 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.
- 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
- 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
- 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
- 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
- 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
- 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?
- 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
- 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”
- 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.
- 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”
- 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.
- 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?
- 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.
- 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.
- 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.
- 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.
- 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
- 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
- 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.
- 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.
- 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
- 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.
- 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?
- 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
- 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.
- 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
- 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.
- This sub-ground of appeal is accordingly dismissed.
D. Pleading the Appellant’s status of commander
as an aggravating circumstance
- 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
- 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
- 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.
- 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.
- 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
- 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
- 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
- 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
- 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
- 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
- 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
- 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
- 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).
- 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
- 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
- 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.
- 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
- 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
- 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
- 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
- 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
- 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
- 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.
- 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
- 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
- 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
- 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
- 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.
- 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.
- 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.
- 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
- 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
- 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.
- 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.
- 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.
- 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
- 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
- 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
- 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
- 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
- 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.
- 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
- 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
- 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
- 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
- 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
- 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
- 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
- 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
- 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
- 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
- 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
- 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
- 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.
- 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
- 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
- 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
- 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”.
- 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.
- 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.
- 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.
- 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
- 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
- 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
- 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
- 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
- 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
- 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
- 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
- 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
- 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
- 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
- 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
- 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
- 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
- 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
- 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
- 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
- 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
- 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
- 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
- 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
- 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
- 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.
- 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
- 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
- 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.
- 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
- 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.
- The Appeals Chambers accordingly dismisses the submissions on this point.
(b) The Appellant’s awareness of the crimes committed
- 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.
- 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
- 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
- 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
- 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.
- 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.
- 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
- 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
- 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.
- 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
- 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
- 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
- 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.
- 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.
- 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
- 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
- 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”
- 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
- 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
- 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.
- 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
- 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.
- 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.
- 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
- 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.
- 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.
- 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
- 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.
- 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
- 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?
- 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
- 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?
- 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
- 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?
- 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
- 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
- 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
- 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
- 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
- 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
- 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
- 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
- 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
- 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
- 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.
- 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
- 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.
- 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
- 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.
- 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
- 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
- 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
- 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
- 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
- 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.
- 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.
- 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
- 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”.
- 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.
- 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
- 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.
- 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
- 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
- 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
- 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
- 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.
- 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
- 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
- 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.
- 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
- 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.
- 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
- 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.
- 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.
- 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.
- 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 ?
- 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
- 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
- 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.
- 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
- 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
- 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
- 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.
- 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
- 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
- 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
- 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.
- 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
- The Appeals Chamber endorses this statement and notes that the provision has
been widely used within the Tribunal’s case-law.651
- 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.
- 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
- 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.
- 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.
- 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
- 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.
- 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
- 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
- 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
- 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
- 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
- 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
- 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
- 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
- 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
- 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.
- 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
- 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
- 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.
- 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.
- 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.
- 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.
- 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
- 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
- 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
- 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.
- 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
- 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.
- 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”.
- 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.
- 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.
- 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
- 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
- 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
- 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
- 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
- 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
- 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
- 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
- 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
- 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
- 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
- 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
- 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
- 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.
- 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
- 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.
- 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
- 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.
- 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
- 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
- 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
- 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
- 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
- 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
- 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
- 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
- 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
- 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.
- 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
- 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
- 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
- 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
- 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.
- 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.
- 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.
- 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
- 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
- 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
- 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
- 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
- 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
- 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
- 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
- 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.
- 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.
- 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
- 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
- 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
- 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
- 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
- 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.
- 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
- 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
- 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
- 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
- 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
- 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
- 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.
- 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.
- 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
- 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
- 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
- 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
- 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
- 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
- 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
- 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
- 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
- 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
- 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
- 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
- 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
- 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”
- 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
- 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
- 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”
- 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
- 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
- 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
- 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
- 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.
Done in English and French, the English text being authoritative.