1 Wednesday, 8 April 2015
2 [Appeals Judgement]
3 [Open session]
4 [The appellant entered court]
5 --- Upon commencing at 2.59 p.m.
6 JUDGE MERON: Please be seated.
7 Good afternoon to everybody. Registrar, will you please call the
9 THE REGISTRAR: Good afternoon, Your Honour. This is case number
10 IT-05-88/2-A, the Prosecutor versus Mr. Tolimir.
11 JUDGE MERON: Thank you.
12 Mr. Tolimir, can you hear the proceedings in a language you
14 THE APPELLANT: [Interpretation] Yes. God's speed to everybody.
15 I can follow the proceedings in Serbian. Thank you.
16 JUDGE MERON: Thank you, Mr. Tolimir. I will now ask for the
17 appearances by the parties.
18 First, Mr. Tolimir.
19 THE APPELLANT: [Interpretation] Thank you, Mr. Presiding Judge.
20 My name is Zdravko Tolimir, and in front of me is Dr. Alexander Gajic, my
21 legal advisor.
22 JUDGE MERON: Thank you. For the Prosecution.
23 MR. WOOD: Good afternoon, Mr. President, Your Honours. Kyle
24 Wood for the Prosecutor, along with Todd Schneider, Nema Milaninia, and
25 Lada Soljan, along with our Case Manager, Janet Stewart.
1 JUDGE MERON: Thank you, Mr. Wood.
2 As the Registrar announced, the case on our agenda today is
3 Prosecutor against Zdravko Tolimir. In accordance with the Scheduling
4 Order issued on 24th of March, 2015, today the Appeals Chamber will
5 deliver its Judgement.
6 At the outset, I would like to inform the parties that
7 Judge Patrick Robinson is unable to sit during this hearing. The Appeals
8 Chamber, therefore, will conduct this hearing pursuant to Rule 15 bis of
9 the Rules of Procedure and Evidence in the absence of Judge Robinson.
10 Following the practice of the Tribunal, I will not read out the
11 text of the Appeal Judgement except for the disposition but instead will
12 summarise essential issues on appeal and the central findings of the
13 Appeals Chamber. This oral summary does not constitute any part of the
14 official and authoritative Judgement of the Appeals Chamber which is
15 rendered in writing and will be distributed to the parties at the close
16 of the hearing.
17 This appeal concerns the responsibility of Mr. Tolimir for crimes
18 committed in the Srebrenica and Zepa enclaves in Eastern Bosnia in 1995.
19 At the time, Mr. Tolimir was an assistant commander and the chief of the
20 sector for intelligence and security affairs of the Main Staff of the
21 Army of the Republika Srpska. I will refer to the Army of the Republika
22 Srpska as the VRS.
23 The Trial Chamber, Judge Nyambe dissenting, found that Tolimir
24 participated in two joint criminal enterprises alleged in the
25 indictment - a joint criminal enterprise to murder the able-bodied men of
1 Srebrenica, and a joint criminal enterprise to forcibly removed the
2 Bosnian Muslim population from the Srebrenica and Zepa enclaves. The
3 Trial Chamber, Judge Nyambe dissenting, found Tolimir guilty pursuant to
4 Article 7(1) of the Statute of the Tribunal of genocide, conspiracy to
5 commit genocide, extermination, murder, persecutions, and inhumane acts
6 through forcible transfer. The Trial Chamber, Judge Nyambe dissenting,
7 sentenced Mr. Tolimir to life imprisonment.
8 Mr. Tolimir submits 25 Grounds of Appeal challenging his
9 convictions and his sentence. He requested the Appeals Chamber reverse
10 all of his convictions or, in the alternative, significantly reduce his
12 The Appeals Chamber will now address each of Mr. Tolimir's
14 In Grounds of Appeal One through Four, Mr. Tolimir challenges the
15 Trial Chamber's decision to take judicial notice of adjudicated facts in
16 its evaluation of certain evidence. For reasons given in its Judgement,
17 the Appeals Chamber, Judge Antonetti dissenting, finds that the Trial
18 Chamber did not err in taking judicial notice of 523 adjudicated facts
19 from other ICTY trial and appeal judgements and it did not err in its
20 assessment of these facts. The Appeals Chamber, Judge Antonetti
21 dissenting, dismisses Tolimir's Ground of Appeal One.
22 Mr. Tolimir also challenges the Trial Chamber's reliance on
23 intercepted communications produced by the Bosnian Muslim side to the
24 conflict. He submits that in reaching its conclusions on the intercepted
25 communications, the Trial Chamber made a number of errors which
1 invalidated the Trial Judgement. For reasons set out in the Judgement,
2 the Appeals Chamber finds that the Trial Chamber did not err in its
3 assessment of the intercepted communications. The Appeals Chamber,
4 therefore, dismisses Tolimir's Ground of Appeal Two.
5 Under his Ground of Appeal Three, Mr. Tolimir submits that the
6 Trial Chamber erred in law by accepting Richard Butler as an expert
7 witness. He argues that the Prosecution failed to disclose his expert
8 report as required by Rule 94 bis of the Rules of Procedure and Evidence
9 and that Butler's long-standing association with the Office of the
10 Prosecutor should have led the Trial Chamber to characterise Butler as an
11 OTP investigator giving evidence of his personal opinion. For reasons
12 given in the written Judgement, the Appeals Chamber finds that the Trial
13 Chamber erred in considering that the Prosecution's notice of its
14 intention to call Butler as an expert witness sufficed to meet the
15 requirements of Rule 94 bis. The Appeals Chamber also finds that the
16 Trial Chamber erred in finding that Mr. Tolimir implicitly accepted
17 Butler's expert status during the trial. The Appeals Chamber concludes,
18 however, that these Trial Chamber's errors caused no prejudice to
19 Mr. Tolimir or had any impact on his conviction. The Appeals Chamber,
20 Judge Antonetti dissenting, further finds that for reasons given in the
21 Judgement, the Trial Chamber did not err in regarding Butler as an expert
22 witness or in the manner in which it evaluated his evidence. The Appeals
23 Chamber, Judge Antonetti dissenting, therefore dismisses Tolimir's Ground
24 of Appeal Three.
25 Tolimir further challenges, under his Ground of Appeal Four, the
1 Trial Chamber's assessment of the evidence of six Prosecution witnesses
2 who are current or former Prosecution investigators. For reasons given
3 in the Judgement, the Appeals Chamber finds that the Trial Chamber
4 applied the correct legal standard when assessing the evidence of these
5 witnesses and that it acted within its discretion in determining the
6 weight to be given to their evidence. Accordingly, the Appeals Chamber
7 dismisses Tolimir's Ground of Appeal Four.
8 In Grounds of Appeal Six through Thirteen, Mr. Tolimir challenges
9 some of the Trial Chamber's legal and factual findings regarding
10 extermination as a crime against humanity, genocide, and forcible
12 Under his Ground of Appeal Nine, Tolimir makes a number of
13 challenges to the Trial Chamber's calculation of the number of persons
14 unlawfully killed by Bosnian Serb forces after the fall of Srebrenica.
15 First, he asserts that the Trial Chamber erred in law in calculating the
16 number of persons killed in circumstances other than the incidents
17 specified in the indictment. Second, he asserts that the Trial Chamber
18 committed methodological errors in calculating the total number of those
19 killed. Third, he challenges the Trial Chamber's findings in calculating
20 the number of victims unlawfully killed in four specific incidents.
21 I will return to Grounds Six and Nine in a moment.
22 The Trial Chamber found that at least 5.749 Bosnian Muslims were
23 unlawfully killed by the Bosnian Serb forces following the fall of
24 Srebrenica. This number included those killed at the specific crime
25 sites cited in paragraphs 21.1 through 22.4 of the indictment and 779
1 individuals killed in circumstances not specified in the indictment. The
2 Appeals Chamber emphasizes that in reaching its Judgement, a Trial
3 Chamber can only convict an accused of crimes which are charged in the
4 indictment. Material facts not pleaded in the indictment cannot serve as
5 a legitimate foundation for a conviction against the accused.
6 In the present case, the incidents charged in the indictment are
7 not mere examples of criminal conduct for which Tolimir is alleged to be
8 responsible but an exhaustive list of specific allegations charged
9 against him. The Appeals Chamber, therefore, finds that the Trial
10 Chamber erred by finding that 779 persons were unlawfully killed by
11 Bosnian Serb forces in circumstances not specified in the indictment and
12 by relying on this higher number in support of its conclusions on
13 Mr. Tolimir's convictions.
14 The Appeals Chamber is not satisfied, however, that this error of
15 law invalidates the Trial Judgement as Mr. Tolimir fails to show why his
16 convictions should not stand on the basis of the number of individuals
17 the Trial Chamber found were unlawfully killed in the specifically
18 circumstances of the indictment.
19 With respect to Mr. Tolimir's contention that the Trial Chamber
20 committed methodological errors in calculating the total number of those
21 killed, the Appeals Chamber observes that the Trial Chamber reached its
22 findings on the number of individuals killed in the incidents specified
23 in the indictment by analysing a combination of evidence comprising
24 witness testimony as to the circumstances of the killings, forensic
25 evidence, and demographic data. For reasons detailed in the Judgement,
1 the Appeals Chamber rejects Mr. Tolimir's challenges to the
2 Trial Chamber's findings that persons identified from Srebrenica-related
3 mass graves were killed unlawfully. Similarly, for reasons given in the
4 Judgement, the Appeals Chamber dismisses Mr. Tolimir's arguments
5 challenging the reliability of the demographic and DNA-based evidence
6 relied upon by the Trial Chamber.
7 The Appeals Chamber also finds that the Trial Chamber did not err
8 in calculating the number of Bosnian Muslims killed at four incidents
9 specified in the indictment, as alleged by Mr. Tolimir. Accordingly, the
10 Appeals Chamber dismisses Tolimir's Ground of Appeal Nine.
11 Under Ground of Appeal Six, Mr. Tolimir challenges his conviction
12 for extermination. His principal argument is that the Trial Chamber
13 erred in law by applying an incorrect legal standard concerning the
14 mens rea for extermination as a crime against humanity, arguing that the
15 victims of this crime must have been targeted on the basis of their
16 civilian status. Tolimir further submits that the Trial Chamber erred in
17 finding that the killings of Mr. Mehmet Hajric, Zepa's mayor and
18 president of the War Presidency, Colonel Avdo Palic, commander of the
19 Army of Bosnia-Herzegovina Zepa Brigade based in Zepa, and Mr. Amir
20 Imamovic, the head of the civil protection unit - I will refer to these
21 three as three Zepa leaders - were part of a single murder operation
22 since they were killed in a period after the murder operation in
24 The Appeals Chamber recalls that while the establishment of the
25 actus reus of a crime against humanity requires that the crime occur as
1 part of a widespread or systemic attack directed against a civilian
2 population, the victims of the underlying crime do not have to be
3 civilians. The Appeals Chamber thus rejects Mr. Tolimir's argument that
4 the Trial Chamber applied an incorrect mens rea standard.
5 With regard to Tolimir's argument that the killings of the three
6 Zepa leaders was not part of the one murder operation involving the mass
7 killings of the men of Srebrenica, the Appeals Chamber recalls that the
8 actus reus of the crime of extermination is, and I quote, "the act of
9 killing on a large scale," and the mens rea is the intention to kill on a
10 large scale. The assessment of "large scale" is made on a case-by-case
11 basis, taking into account the circumstances in which the killings
12 occurred. While the actus reus of the crime of extermination may be
13 established through an aggregation of separate incidents, the Appeals
14 Chamber has held that, and I quote, "the element of killing on a large
15 scale cannot be satisfied by a collective consideration of distinct
16 events committed in different prefectures, in different circumstances, by
17 different perpetrators, and over an extended period of time; that is, a
18 period of two months."
19 The Appeals Chamber observes that the Trial Chamber found that
20 there are factors shared by the murders of the three Zepa leaders with
21 the mass murders of the men and boys of Srebrenica. These are the fact
22 that the murders occurred in the weeks following the fall of the two
23 enclaves, the fact that the victims were all Bosnian Muslims, the
24 violence of the killings, the general identity of the perpetrators of the
25 killings as members of the Bosnian Serb forces, and the link to the
1 overall goal of the Bosnian Serb forces of "ridding the enclaves of its
2 Bosnian Muslim population."
3 The Appeals Chamber notes, however, that the Trial Chamber found
4 that the three Zepa leaders were killed in late August and September,
5 therefore after the main attack against the civilian population, which
6 lasted until the end of July 1995, and included the military operations
7 against both enclaves, the removal of thousands of civilians from
8 Srebrenica and Zepa, and the killings of the Bosnian Muslim men from
9 Srebrenica. At the time of the killing of the three Zepa leaders, both
10 enclaves were empty, and the civilian population had been transferred to
11 Army of Bosnia and Herzegovina-held territory.
12 Further, the Appeals Chamber notes that the murder of the three
13 Zepa leaders was charged in the indictment and found by the Trial Chamber
14 to be a foreseeable consequence of the JCE to forcibly remove and not the
15 JCE to murder.
16 The Appeals Chamber additionally observes that prior to the
17 killings the three Zepa leaders were singled out from the other Bosnian
18 Muslim male prisoners who were not killed but were to be ultimately
19 subject to a prisoner exchange agreement. Consequently, the Appeals
20 Chamber is not convinced that the killing of the three Zepa leaders was
21 part of the same murder operation that had targeted the men and boys of
23 For these reasons, the Appeals Chamber upholds Ground of Appeal
24 Six, in part, to the extent that it concerns the killings of the three
25 Zepa leaders, and dismisses the remainder of the ground.
1 Under his Ground of Appeal Thirteen, Tolimir challenges the
2 Trial Chamber's findings that the bussing of Bosnian Muslims out of
3 Potocari on 12 and 13 July 1995 and out of Zepa on 25-27 July 1995
4 constituted the crime of forcible transfer. He contends that the
5 Trial Chamber erred in finding that the transfer of the population was
6 forced since it was the Bosnian Muslim authorities in Sarajevo and Zepa
7 that sought to evacuate the civilian population of Srebrenica and Zepa
8 before the attacks on the two enclaves occurred. He also submits that
9 the Trial Chamber failed to provide a reasoned opinion by not explaining
10 that the civilian populations of Srebrenica and Zepa were displaced
11 within a national border, arguing that since the border between the
12 Republika Srpska and Bosnian and Herzegovina was a de jure or a de facto
13 border, the transfer of the populations across that border could not
14 constitute the crime of forcible transfer.
15 In finding that the population transfers from the Srebrenica and
16 Zepa enclaves were forced, the Trial Chamber cited the well-settled
17 principle of international humanitarian law that "forced displacement is
18 not justified in circumstances where the humanitarian crisis that caused
19 the displacement is itself the result of the accused's unlawful
20 activity." For reasons given in the Judgement, the Appeals Chamber finds
21 no error in the Trial Chamber's assessment of the evidence and in its
22 conclusion that the transfer of the population from the Srebrenica and
23 Zepa enclaves was forced.
24 The Appeals Chamber also finds that the Trial Chamber did not
25 fail to provide a reasoned opinion, as submitted by Mr. Tolimir. The
1 Trial Chamber reasonably found that the civilians were forcibly displaced
2 to other areas of Bosnia and Herzegovina; for example, Kladanj, which did
3 not constitute an area across a de jure or de facto border. Although the
4 Trial Chamber did not make an express finding that the civilians
5 populations of Srebrenica and Zepa were displaced within national
6 boundaries, it is clear that the Trial Chamber found that the civilian
7 populations were transferred to areas within the national boundaries of
8 Bosnia and Herzegovina. For these reasons, the Appeals Chamber,
9 Judge Antonetti dissenting, dismisses Ground of Appeal Thirteen.
10 Under Grounds of Appeal Eight, Ten, Eleven, and Twelve,
11 Mr. Tolimir makes a number of challenges to the Trial Chamber's legal and
12 factual findings regarding the crime of genocide. The Trial Chamber
13 found Mr. Tolimir guilty of genocide committed through the killings of
14 the men from Srebrenica, through causing serious bodily or mental harm to
15 the men from Srebrenica and the woman, children, and elderly from
16 Srebrenica and Zepa, and through inflicting on the protected group
17 conditions of life calculated to bring about their destruction.
18 Mr. Tolimir first submits that the Trial Chamber erred in law in
19 finding that the Bosnian Muslims of Eastern Bosnia and Herzegovina
20 qualified as part of a protected group under Article 4 of the Statute,
21 Ground of Appeal Eight. Second, he argues that the Trial Chamber erred
22 in law and fact in its analysis of the actus reus of genocide by: (i)
23 misinterpreting serious mental harm as an underlying genocidal act and
24 applying that erroneous interpretation to the facts of the case, Ground
25 of Appeal Seven in part, and Ten in part; and (ii) misinterpreting the
1 term "physical destruction" under Article 4(2)(b) of the Statute, Ground
2 of Appeal Ten in part; third, Mr. Tolimir submits that the Trial Chamber
3 erred in law in its analysis of the mens rea required for genocide,
4 Grounds of Appeal Seven in part, Eleven, and Twelve.
5 For reasons set out in the Judgement, the Appeals Chamber finds
6 no merit in Mr. Tolimir's contention that the Trial Chamber erred in law
7 by failing to provide a reasoned opinion as to why the Bosnian Muslims
8 qualified as a protected group under Article 4 of the Statute and why the
9 Bosnian Muslims of Eastern Bosnia and Herzegovina were a substantial part
10 of that group. In reaching its conclusion on this point, the
11 Trial Chamber referred to and applied by analogy the reasoning given in
12 the Popovic et al. Trial Judgement and in the Krstic Appeal Judgement as
13 to why the Bosnian Muslim population of Srebrenica, although a small
14 percentage of the overall Muslim population of Bosnia and Herzegovina,
15 amounted to a substantial part of that group. The Trial Chamber thus
16 held that the reasoning in other relevant cases equally applied to the
17 population specified in the indictment; namely, the Bosnian Muslim
18 population in the enclaves of Srebrenica, Zepa, and Gorazde. The Appeals
19 Chamber finds no error with this approach. The Appeals Chamber therefore
20 dismisses Tolimir's Ground of Appeal Eight.
21 The Appeals Chamber likewise finds no merit in Mr. Tolimir's
22 arguments that the Trial Chamber erred in law and fact in finding that
23 Bosnian Serb forces inflicted serious bodily or mental harm as defined in
24 Article 4(2)(b) of the Statute on the Bosnian Muslim males from
25 Srebrenica. The Appeals Chamber recalls that "threats of death" and
1 knowledge of impending death have been accepted as amounting to serious
2 mental harm under Article 4 of the Statute. Further, there is nothing in
3 the Statute or in the Genocide Convention that prevents a Trial Chamber
4 from considering the harm suffered by a victim prior to this as a
5 separate actus reus of genocide. Further, the Appeals Chamber finds no
6 error in the Trial Chamber's conclusion that the forcible transfer of the
7 Bosnian Muslim population out of Srebrenica amounted to infliction of
8 serious mental harm and thus an act of genocide under Article 4(b) of the
10 Nothing in the Tribunal's jurisprudence or the Genocide
11 Convention supports Mr. Tolimir's contention that forcible transfer may
12 only constitute genocide if the displaced population is transferred to
13 concentration camps or places of execution.
14 Considering the Trial Chamber's findings regarding the painful
15 separation process of the women, children, and elderly from their male
16 family members in Srebrenica, the fear and uncertainty as to their fate,
17 and the fate of their detained male relatives, and the appalling
18 conditions of their journey to Army of Bosnia and Herzegovina-held
19 territories, the Appeals Chamber is satisfied that the Trial Chamber
20 provided sufficient reasoning for its conclusion that the suffering of
21 the women, children, and elderly forcibly transferred out of Srebrenica
22 inflicted serious mental harm and thus constituted an act of genocide
23 under Article 4(2)(b).
24 Further, for reasons set out in the Judgement, the
25 Appeals Chamber, Judge Antonetti dissenting, also dismisses Mr. Tolimir's
1 contention that the Trial Chamber erred in law and fact in finding that
2 the Bosnian Serb forces who committed the underlying acts set out in
3 Article 4(2)(a) through (c) had genocidal intent.
4 With respect to Mr. Tolimir's challenges to the Trial Chamber's
5 findings regarding the serious bodily or mental harm inflicted on the
6 Bosnian Muslim population forcibly transferred from Zepa, the
7 Appeals Chamber recalls that under the Genocide Convention, serious
8 mental harm results only from acts causing grave and long-term
9 disadvantage to the ability of members of the protected group to lead a
10 normal and constructive life and threatening the physical destruction of
11 the group as such. The Appeals Chamber notes that unlike the
12 Bosnian Muslims forcibly transferred from Srebrenica, the Trial Chamber
13 made no findings and cited no evidence as to the lasting impact of the
14 forcible transfer operation on Zepa's population.
15 The Appeals Chamber further recalls that acts falling under
16 Article 4(2)(b) of the Statute require proof of a result, that is, that
17 serious mental harm was inflicted. The Appeals Chamber, Judge Sekule and
18 Judge Guney dissenting, finds that, in the absence of findings or
19 reference to evidence of any long-term consequences of the forcible
20 transfer operation on the Zepa population and the Bosnian Muslim
21 population of Eastern Bosnia and Herzegovina in general and of a link
22 between the circumstances of the transfer operation in Zepa and the
23 physical destruction of the protected group as a whole, no reasonable
24 trier of fact could have found that the Bosnian Muslims forcibly
25 transferred from Zepa suffered serious mental harm within the meaning of
1 Article 4(2)(b) of the Statute.
2 Accordingly, the Appeals Chamber, Judge Sekule and Judge Guney
3 dissenting, grants Ground of Appeal Ten in part and reverses Tolimir's
4 conviction for genocide through causing serious mental harm to the
5 Bosnian Muslim population of Eastern Bosnia and Herzegovina under
6 Article 4(2)(b) of the Statute to the extent that this conviction was
7 based on the Bosnian Serb operations in Zepa.
8 This conclusion does not amount to a conclusion that the
9 Bosnian Muslims of Zepa were not the victims of genocide. The Appeals
10 Chamber emphasizes that the only question addressed here is whether the
11 Trial Chamber erred in finding that the forcible transfer operation in
12 Zepa inflicted on the transferred Muslim population serious mental harm
13 as this term is defined in Article 4(2)(b) of the Statute. The
14 Appeals Chamber recalls here its earlier conclusion that the
15 Trial Chamber did not err in finding that the Bosnian Muslims of Zepa
16 were within the targeted part of the protected group and were thus among
17 the ultimate victims of the genocidal enterprise against the Muslims of
18 Eastern Bosnia and Herzegovina.
19 Tolimir further challenges the Trial Chamber's finding that the
20 conditions resulting from the combined effect of the forcible transfer
21 operations of the women and children and the killing of the Bosnian
22 Muslim men were deliberately inflicted and calculated to lead to the
23 physical destruction of the Bosnian Muslim population of Eastern Bosnia
24 and Herzegovina. The Appeals Chamber has not previously been called upon
25 to address the issue of what acts qualify as the actus reus of genocide
1 under Article 4(2)(c) of the Statute. However, it is satisfied that the
2 legal principles stated by the Trial Chamber are consistent with the
3 existing case law of the ICTY and the ICTR, as well as the letter and
4 spirit of the Genocide Convention.
5 The Appeals Chamber finds that the deliberate infliction on the
6 protected group of conditions of life calculated to bring about its
7 physical destruction in whole or in part covers methods of physical
8 destruction, other than killing, whereby the perpetrator ultimately seeks
9 the death of the members of the group. Such methods of destruction
10 include depravation of food, medical care, shelter or clothing, as well
11 as lack of hygiene, systemic expulsion from homes, or exhaustion as a
12 result of excessive work or physical exertion.
13 The Trial Chamber considered the combined effect of: (i), the
14 forcible transfer operation in relation to Srebrenica's Muslim women,
15 children, and elderly from Potocari and Zepa's Muslim population; and
16 (ii), the killing of at least 5.749 Bosnian Muslim men from Srebrenica,
17 to conclude that these operations were aimed at destroying this
18 Bosnian Muslim community and preventing reconstitution of the group in
19 this area; that is, Eastern Bosnia and Herzegovina.
20 In the view of the Appeals Chamber, the Trial Chamber's
21 aggregation of the killings and the forcible transfer operations under
22 Article 4(2)(c) of the Statute was an error, as it contravened the very
23 case law cited by the Trial Chamber in paragraph 740 of its Judgement.
24 The Appeals Chamber recalls that Article 4(2)(c) of the Statute
25 covers methods of destruction that do not immediately kill the members of
1 the group but ultimately seek their physical destruction. The
2 Appeals Chamber therefore accepts Tolimir's argument that the
3 Trial Chamber was legally barred from considering the combined effect of
4 the killing and the forcible transfer operations under Article 4(2)(c) of
5 the Statute.
6 The Appeals Chamber further notes that in its application of
7 Article 4(2)(c) of the Statute, the Trial Chamber considered the
8 destruction of mosques in Srebrenica and Zepa as an additional act
9 through which the Bosnian Serb forces inflicted on the protected group
10 conditions of life calculated to bring about its destruction. As the
11 Trial Chamber itself acknowledged, acts amounting to cultural genocide
12 are excluded from the scope of the Genocide Contravention. The Trial
13 Chamber, therefore, committed a legal error in considering the
14 destruction of mosques in Srebrenica and Zepa under Article 4(2)(c) of
15 the Statute.
16 In light of the legal errors identified above, the
17 Appeals Chamber will proceed to examine the factual findings of the
18 Trial Chamber and the evidence on the record in order to determine
19 whether the forcible transfer operations of the Muslim populations of
20 Srebrenica and Zepa, excluding the killings of Srebrenica's males and the
21 destruction of mosques in the enclaves, were conducted under such
22 circumstances as to impose on the protected group conditions of life
23 meeting the threshold of Article 4(2)(c) of the Statute.
24 In this regard, the Appeals Chamber recalls its holding in the
25 Krstic case that a forcible transfer operation does not amount to
1 physical destruction as such and the displacement of a protected group,
2 either in whole or in part, does not constitute a genocidal act per se.
3 After carefully examining the relevant evidence, the
4 Appeals Chamber is not convinced that the forcible transfer operations
5 Srebrenica and Zepa, viewed separately from the killings of Srebrenica's
6 male population, were conducted under circumstances calculated to result
7 in the total or partial physical destruction of the protected group; that
8 is, the Muslims of Eastern Bosnia and Herzegovina.
9 The trial record is devoid of evidence that the forcible
10 transfers, if they are analysed separately from the killing operation and
11 the destruction of mosques in Srebrenica and Zepa, were carried out with
12 a view to the destruction of the group, as distinct from its removal from
13 the region.
14 Although the Appeals Chamber is satisfied that there was a
15 deliberate plan to expel the Bosnian Muslim women, children, and elderly
16 from Srebrenica, and the entire Muslim population from Zepa, the
17 Appeals Chamber finds that it has not been established beyond a
18 reasonable doubt that such a policy of removal, implemented through the
19 JCE to forcibly remove, was aimed at causing the physical destruction of
20 these populations.
21 The Appeals Chamber emphasizes that this conclusion does not
22 amount to a conclusion that the Bosnian Muslims of Zepa were not the
23 victims of genocide. The Appeals Chamber has confirmed the
24 Trial Chamber's finding that the Bosnian Muslims of Zepa are, along with
25 the Muslims of Srebrenica and Eastern Bosnia and Herzegovina in general,
1 members of the protected group within the meaning of Article 4 of the
2 Statute and were thus among the ultimate victims of the genocidal
3 enterprise against the Muslims of Eastern Bosnia and Herzegovina.
4 Accordingly, the Appeals Chamber grants Mr. Tolimir's Ground of
5 Appeal Ten, in part, to the extent that it challenges the Trial Chamber's
6 findings under Article 4(2)(c) of the Statute for the infliction of
7 conditions calculated to destroy the protected group and reverses
8 Tolimir's conviction for genocide under Article 4(2)(c) of the Statute.
9 Mr. Tolimir further challenges the Trial Chamber's conclusion
10 that the Bosnian Serb forces killed the three Zepa leaders with the
11 intent of destroying the Muslim population of Eastern Bosnia and
12 Herzegovina as such.
13 The Appeals Chamber agrees with the Trial Chamber that the
14 selective targeting of leading figures of a community may amount to
15 genocide and may be indicative of genocidal intent. For a finding of
16 genocide, it suffices that the leaders were selected for the impact that
17 their disappearance would have on the survival of the group as such. The
18 Trial Chamber found that all three Zepa leaders were arrested and
19 detained shortly after the completion of the forcible removal operation
20 in Zepa at the end of July 1995 and that Hajric and Imamovic were killed
21 sometime in late August 1995, while Palic was killed in early September
23 It is clear from these findings that the killings did not proceed
24 or occur simultaneously with but followed the forcible transfer of the
25 Zepa population.
1 The Appeals Chamber recalls that the character of the attack on
2 the leadership must be viewed in the context of the fate or what happened
3 to the rest of the group at the same time or in the wake of that attack.
4 The Trial Judgement contains no findings or reference to evidence
5 as to the impact of the disappearance of the three Zepa leaders on the
6 survival of the Bosnian Muslim population from Zepa. The Trial Chamber
7 failed to explain how their detention and killings, committed weeks after
8 the entire Zepa population had been forcibly transferred from the
9 enclave, had any impact "on the survival of the group as such" in light
10 of the fact that the forcible transfer operation of Zepa's
11 Bosnian Muslims had been completed before the three Zepa leaders were
12 detained and killed and in the absence of any findings as to whether or
13 how the loss of these three prominent figures affected the ability of the
14 Bosnian Muslims from Zepa to survive in the post-transfer period, the
15 inference of genocidal intent was not the only reasonable inference that
16 could be drawn from the record.
17 The Appeals Chamber, therefore, finds that the Trial Chamber
18 erred in holding that the three Zepa leaders were killed by the
19 Bosnian Serb forces with the specific intent of destroying part of the
20 Bosnian Muslim population as such and grants Mr. Tolimir's Ground of
21 Appeal Twelve.
22 In Grounds of Appeal Five and Fourteen through Twenty,
23 Mr. Tolimir contests the Trial Chamber's legal and factual findings
24 concerning his responsibility for participation in the two joint criminal
25 enterprises; the joint criminal enterprise to murder, and the joint
1 criminal enterprise to forcibly remove. Mr. Tolimir first challenges
2 under Ground of Appeal Five the Trial Chamber's finding that JCE is a
3 mode of liability under customary international law. For reasons set out
4 in the Judgement, the Appeals Chamber, Judge Antonetti dissenting, finds
5 no merit in Mr. Tolimir's submissions and dismisses his Ground of Appeal
6 Five. The Appeals Chamber, Judge Antonetti dissenting, also finds no
7 merit in Mr. Tolimir's submissions that the Trial Chamber erred in law
8 and fact in making findings on the relevant VRS military principles and
9 on his position as assistant commander and chief of the sector for
10 intelligence and security affairs.
11 The Trial Chamber reasonably found that pursuant to the regular
12 military chain of command, the security organs were directly subordinated
13 to the commander of those brigades or units for their day-to-day work and
14 that the chief of the sector for intelligence and security affairs
15 directed, coordinated, and supervised the work of subordinate security
16 and intelligence organs with respect to matters associated with security
17 or intelligence. The Appeals Chamber further confirms the
18 Trial Chamber's findings in relation to Mr. Tolimir's powers and the
19 information available to him. Therefore, the Appeals Chamber,
20 Judge Antonetti dissenting, dismisses Mr. Tolimir's Ground of Appeal
22 Under his Ground of Appeal Fifteen, Mr. Tolimir challenges the
23 Trial Chamber's conclusion that a JCE to forcibly remove existed and its
24 conclusions about his participation in it. Specifically, he argues that
25 the Trial Chamber erred in: One, finding that the RS leadership adopted
1 objectives in May 1992 which evidenced a policy to get rid of Muslim
2 population of Eastern Bosnia and Herzegovina, misinterpreting Directive 7
3 and its relationship with Directive 7/1 and consequent VRS military
4 orders; two, finding that the VRS participated in the restrictions of
5 UNPROFOR and humanitarian aid convoys; three, taking into consideration
6 an attack on the Srebrenica enclave through a tunnel in the night of 23
7 to 24 June 1995; and four, finding that the enclaves' status as safe
8 areas was inviolable under international law even though they were not
9 fully demilitarised. For reasons set out in the Judgement, the
10 Appeals Chamber, Judge Antonetti dissenting, finds no merit in
11 Mr. Tolimir's submissions. Similarly, the Appeals Chamber,
12 Judge Antonetti dissenting, finds no support for Mr. Tolimir's argument
13 that the Trial Chamber erred in fact and in law in finding that he
14 significantly contributed to the JCE to forcibly remove.
15 With respect to his liability, pursuant to the JCE to murder,
16 Tolimir first contends that the Trial Chamber erred in fact and law in
17 finding that two killing incidents; namely, the killings at Kravica
18 warehouse of 600 to 1.000 Bosnian Muslims on 13 and 14 July 1995; and the
19 killings of six Bosnian Muslims from Srebrenica by the Skorpions unit at
20 a site near Trnovo were executed to achieve the common purpose of the JCE
21 to murder.
22 For reasons set out in the Judgement, the Appeals Chamber,
23 Judge Antonetti dissenting, finds no error in the Trial Chamber's
24 findings that the killings at Kravica warehouse were part of the common
25 part to murder and dismisses Mr. Tolimir's Ground of Appeal Nineteen.
1 With respect to Mr. Tolimir's challenges to the Trial Chamber's
2 conclusions regarding the killings of six Bosnian Muslims near Trnovo,
3 the Appeals Chamber notes that the Trial Chamber did not explicitly find
4 that there existed a link between the members of the Skorpions unit who
5 committed the Trnovo killings and a member of the JCE and that therefore
6 the killings form part of the JCE to murder. The Trial Chamber only
7 alluded to such a finding by concluding on the basis of the "evidence in
8 its totality" including evidence of the Trnovo killings, that a common
9 plan to murder the Bosnian Muslim males from Srebrenica existed.
10 The Appeals Chamber finds that the Trial Chamber's failure to
11 further elaborate on the required link between the perpetrators and a JCE
12 members amounts to a failure to provide a reasoned opinion. In view of
13 the Trial Chamber's error of law, the Appeals Chamber will consider
14 whether the factual findings in the Trial Judgement on a whole would
15 allow a reasonable trier of fact to establish a link between the
16 Skorpions unit and a member of the JCE to murder.
17 The Appeals Chamber notes that even though the Trial Chamber
18 found that the Skorpions unit was acting at the relevant time under the
19 direction of the Bosnian Serb forces, it failed to identify under whose
20 direction or pursuant to whose orders they acted. The Appeals Chamber
21 recalls that the Trial Chamber did not find that all the members of the
22 Bosnian Serb forces were also members of the JCE to murder. While the
23 evidence upon which the Trial Chamber relied suggests that the six men
24 were transported from the Srebrenica area to Trnovo by members of the
25 Skorpions unit where they were subsequently killed, the Appeals Chamber
1 is not convinced that it was reasonable for the Trial Chamber to infer
2 from these facts that the Skorpions unit perpetrated the six killings in
3 Trnovo in furtherance of the common plan of the JCE to murder. The
4 Appeals Chamber therefore grants Mr. Tolimir's Ground of Appeal Twenty.
5 Under his Ground of Appeal Sixteen, Mr. Tolimir challenges the
6 Trial Chamber's conclusions that he was aware of and intended the common
7 plan to murder the able-bodied Bosnian Muslim men from the Srebrenica
8 enclave. He also challenges the Trial Chamber's findings that he
9 significantly contributed to this common plan. For reasons set out in
10 detail in the Judgement, the Appeals Chamber, Judge Antonetti dissenting,
11 rejects Mr. Tolimir's arguments that the Trial Chamber's conclusions
12 regarding his knowledge and contribution to the JCE was primarily based
13 on his position as assistant commander and that the Trial Chamber
14 incorrectly interpreted Prosecution and Defence exhibits relevant to his
15 participation in the JCE to murder. The Appeals Chamber, Judge Antonetti
16 dissenting, dismisses Mr. Tolimir's Ground of Appeal Sixteen.
17 Under Grounds Seventeen and Eighteen of his appeal, Mr. Tolimir
18 challenges the Trial Chamber's findings on his responsibility pursuant to
19 JCE II for persecutory acts, including opportunistic killings, as a
20 natural and foreseeable consequence of JCE to forcibly remove and JCE to
21 murder, Ground Seventeen; and for the killings of the three Zepa leaders
22 as a natural and foreseeable consequence of the JCE to forcibly remove,
23 Ground Eighteen. For reasons set out in the Judgement, the
24 Appeals Chamber, Judge Antonetti dissenting, finds no merit in
25 Mr. Tolimir's arguments and dismisses his Grounds of Appeal Seventeen and
2 In Grounds of Appeal Twenty-One through Twenty-Three, Mr. Tolimir
3 challenges the Trial Chamber's findings regarding his responsibility in
4 relation to genocide, conspiracy to commit genocide, and crimes against
5 humanity. For reasons given in the Judgement, the Appeals Chamber,
6 Judge Antonetti dissenting, finds that the Trial Chamber did not err in
7 finding that Mr. Tolimir possessed genocidal intent and that he possessed
8 the mens rea required for crimes against humanity. The Appeals Chamber,
9 Judge Antonetti dissenting, also confirms the Trial Chamber's findings
10 that Mr. Tolimir was criminally responsible for conspiracy to commit
11 genocide on the basis of his significant contribution to the JCE to
12 murder. The Appeals Chamber, Judge Antonetti dissenting, therefore,
13 dismisses Mr. Tolimir's Grounds of Appeal Twenty-One through
15 Finally, in Ground of appeal Twenty-Four, Mr. Tolimir contests
16 the Trial Chamber's finds on his cumulative convictions and in Ground of
17 Appeal Twenty-Five its findings in relation to his sentence. For reasons
18 set out in the Judgement, the Appeals Chamber finds that the Trial
19 Chamber did not err in law or in fact in applying the principles of
20 cumulative convictions and dismisses Mr. Tolimir's Ground of Appeal
22 The Appeals Chamber, Judge Antonetti dissenting, also finds that
23 the Trial Chamber did not err in applying the principles of sentencing by
24 imposing a sentence that is manifestly excessive and disproportionate.
25 I now turn to the impact of the Appeals Chamber's findings on the
1 sentencing. In this context, the Appeals Chamber recalls that it
2 reversed some of the convictions of Mr. Tolimir. The Appeals Chamber
3 notes, however, that Mr. Tolimir's remaining convictions, in particular
4 those for genocide committed through the killings of the men from
5 Srebrenica and through the infliction of serious bodily or mental harm to
6 the Bosnian Muslim population of Srebrenica are sustained. In light of
7 these genocide convictions alone, the Appeals Chamber considers that
8 Tolimir's responsibility does not warrant a revision of his sentence.
9 I will now read out the full text of the disposition of the
10 Appeals Chamber Judgement.
11 Mr. Tolimir, would you stand, please.
12 For the foregoing reasons, the Appeals Chamber, pursuant to
13 Article 25 of the Statute and Rules 117 and 118 of the Rules, noting the
14 respective written submissions of the parties and the arguments they
15 presented at the appeal hearing on 12 November 2014, sitting in open
16 session, grants in part: Ground of Appeal Six and reverses Tolimir's
17 conviction for extermination as a crime against humanity to the extent
18 that it concerns the killings of the three Zepa leaders specified in
19 paragraph 23.1 of the indictment; grants in part, Judge Sekule and
20 Judge Guney dissenting, Ground of Appeal Ten and reverses Tolimir's
21 conviction for genocide committed through the ever causing serious mental
22 harm to Bosnian Muslim population of Eastern Bosnia and Herzegovina under
23 Article 4(2)(b) of the Statute to the extent that this conviction was
24 based on the forcible transfer of Bosnian Muslims from Zepa; grants in
25 part, Ground of Appeal Ten and reverses Tolimir's conviction for genocide
1 through inflicting conditions of life calculated to destroy the
2 Bosnian Muslim population of Eastern Bosnia and Herzegovina under
3 Article 4(2)(c) of the Statute; grants Ground of Appeal Twelve and
4 reverses his conviction for genocide, Count 1, to the extent that it
5 concerns the killings of the three Zepa leaders specified in
6 paragraph 23.1 of the indictment; grants Ground of Appeal Twenty and
7 reverses Tolimir's conviction for genocide, Count 1, extermination as a
8 crime against humanity, Count 3, and murder as a violation of the laws or
9 customs of war, Count 5, to the extent they concern the killings of six
10 Bosnian Muslim men near Trnovo specified in paragraph 21.16 of the
11 indictment; dismisses, Judge Antonetti dissenting, Grounds of Appeal 1,
12 3, 5, 7, 11, 13, 14, 15, 16, 17, 18, 19, 21, 22, 23, and 25; dismisses
13 Tolimir's remaining Grounds of Appeal; affirms the remainder of Tolimir's
14 convictions under Counts 1, 2, 3, 5, 6, and 7; affirms Tolimir's sentence
15 of life imprisonment, subject to credit being given under Rule 101(C) of
16 the Rules for the period he has already spent in detention; rules that
17 this Judgement shall be enforced immediately pursuant to Rule 118 of the
18 Rules; orders that in accordance with Rule 103(C) and 107 of the Rules,
19 Tolimir is to remain in the custody of the Tribunal pending the
20 finalisation of arrangements for his transfer to the state where he will
21 serve his sentence.
22 Judge William H. Sekule appends a partly dissenting opinion.
23 Judge Mehmet Guney appends a partly dissenting opinion.
24 Judge Jean-Claude Antonetti appends a separate and partly
25 dissenting opinion.
1 The hearing of the Appeals Chamber of the International Criminal
2 Tribunal for the former Yugoslavia stands adjourned.
3 --- Whereupon the hearing adjourned
4 at 4.13 p.m.