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Mr. Norman Farrell
Mr. Mathias Marcussen
Ms. Magda Karagiannakis
Mr. Xavier Tracol
Mr. Dan Moylan
Counsel for the Defendant:
Mr. Nenad Petrusic
Mr. Norman Sepenuk
I. INTRODUCTION
The Appeals Chamber of the International Tribunal for the Prosecution of
Persons Responsible for Serious Violations of International
Humanitarian Law
Committed in the Territory of the Former Yugoslavia Since 1991 is seised of
two appeals from the written
Judgement rendered by the Trial Chamber on 2
August 2001 in the case of Prosecutor v. Radislav Krstic, Case
No. IT-98-33-T (�Trial Judgement�). Having considered the written and oral
submissions of the Prosecution and the
Defence, the Appeals Chamber hereby
renders its Judgement.
Srebrenica is located in eastern Bosnia and Herzegovina. It gave its name
to a United Nations so-called safe area, which was
intended as an enclave
of safety set up to protect its civilian population from the surrounding war.
Since July 1995, however,
Srebrenica has also lent its name to an event the
horrors of which form the background to this case. The depravity, brutality
and cruelty with which the Bosnian Serb Army (�VRS�) treated the innocent
inhabitants of the safe area are now well known
and documented.[1]
Bosnian women, children and elderly were removed from the enclave,[2]
and between 7,000 � 8,000 Bosnian Muslim men were systematically murdered.[3]
Srebrenica is located in the area for which the Drina Corps of the VRS
was responsible. Radislav Krstic was a General-Major
in the VRS and Commander
of the Drina Corps at the time the crimes at issue were committed. For his
involvement in these
events, the Trial Chamber found Radislav Krstic guilty
of genocide; persecution through murders, cruel and inhumane treatment,
terrorising
the civilian population, forcible transfer and destruction of personal property;
and murder as a violation
of the laws or customs of war. Radislav Krstic was
sentenced to forty-six years of imprisonment.
For ease of reference, two annexes are appended to this Judgement. Annex
A contains a Procedural Background, detailing the progress
of this appeal.
Annex B contains a Glossary of Terms, which provides references to and definitions
of citations and terms
used in this Judgement.
II. THE TRIAL CHAMBER�S FINDING THAT GENOCIDE OCCURRED
IN SREBRENICA
The Defence appeals Radislav Krstic�s conviction for genocide committed
against Bosnian Muslims in Srebrenica. The Defence argues
that the Trial Chamber
both misconstrued the legal definition of genocide and erred in applying the
definition to the circumstances
of this case.[4]
With respect to the legal challenge, the Defence�s argument is two-fold. First,
Krstic contends that the Trial Chamber�s
definition of the part of the national
group he was found to have intended to destroy was unacceptably narrow. Second,
the Defence argues that the Trial Chamber erroneously enlarged the term �destroy�
in the prohibition of genocide to include
the geographical displacement of
a community.
A. The Definition of the Part of the Group
Article 4 of the Tribunal�s Statute, like the Genocide Convention,[5]
covers certain acts done with �intent to destroy, in whole or in part, a national,
ethnical, racial or religious group,
as such.� The Indictment in this case
alleged, with respect to the count of genocide, that Radislav Krstic �intend[ed]
to destroy a part of the Bosnian Muslim people as a national, ethnical, or
religious group.�[6] The targeted group
identified in the Indictment, and accepted by the Trial Chamber, was that
of the Bosnian Muslims.[7] The Trial Chamber
determined that the Bosnian Muslims were a specific, distinct national group,
and therefore covered by
Article 4.[8] This
conclusion is not challenged in this appeal.[9]
As is evident from the Indictment, Krstic was not alleged to have intended
to destroy the entire national group of Bosnian Muslims,
but only a part of
that group. The first question presented in this appeal is whether, in finding
that Radislav Krstic
had genocidal intent, the Trial Chamber defined the relevant
part of the Bosnian Muslim group in a way which comports with the
requirements
of Article 4 and of the Genocide Convention.
It is well established that where a conviction for genocide relies on the
intent to destroy a protected group �in part,� the
part must be a substantial
part of that group. The aim of the Genocide Convention is to prevent the intentional
destruction
of entire human groups, and the part targeted must be significant
enough to have an impact on the group as a whole. Although
the Appeals Chamber
has not yet addressed this issue, two Trial Chambers of this Tribunal have
examined it. In Jelisic, the first case to confront the question, the
Trial Chamber noted that, �[g]iven the goal of the [Genocide] Convention to
deal with mass crimes, it is widely acknowledged that the intention to destroy
must target at least a substantial part of the group.�[10]
The same conclusion was reached by the Sikirica Trial Chamber: �This
part of the definition calls for evidence of an intention to destroy a substantial
number relative
to the total population of the group.�[11]
As these Trial Chambers explained, the substantiality requirement both captures
genocide�s defining character as a crime
of massive proportions and reflects
the Convention�s concern with the impact the destruction of the targeted part
will
have on the overall survival of the group.[12]
The question has also been considered by Trial Chambers of the ICTR, whose
Statute contains an identical definition of the crime
of genocide.[13]
These Chambers arrived at the same conclusion. In Kayishema, the Trial
Chamber concluded, after having canvassed the authorities interpreting the
Genocide Convention, that the term
��in part� requires the intention to destroy
a considerable number of individuals who are part of the group.�[14]
This definition was accepted and refined by the Trial Chambers in Bagilishema
and Semanza, which stated that the intent to destroy must be, at
least, an intent to destroy a substantial part of the group.[15]
This interpretation is supported by scholarly opinion. The early commentators
on the Genocide Convention emphasized that the
term �in part� contains a substantiality
requirement. Raphael Lemkin, a prominent international criminal lawyer who
coined
the term �genocide� and was instrumental in the drafting of the Genocide
Convention, addressed the issue during the 1950 debate
in the United States
Senate on the ratification of the Convention. Lemkin explained that �the destruction
in part must
be of a substantial nature so as to affect the entirety.�[16]
He further suggested that the Senate clarify, in a statement of understanding
to accompany the ratification, that �the
Convention applies only to actions
undertaken on a mass scale.�[17] Another
noted early commentator, Nehemiah Robinson, echoed this view, explaining that
a perpetrator of genocide must possess
the intent to destroy a substantial
number of individuals constituting the targeted group.[18]
In discussing this requirement, Robinson stressed, as did Lemkin, that �the
act must be directed toward the destruction
of a group,� this formulation
being the aim of the Convention.[19]
Recent commentators have adhered to this view. The International Law Commission,
charged by the UN General Assembly with the
drafting of a comprehensive code
of crimes prohibited by international law, stated that �the crime of genocide
by its very
nature requires the intention to destroy at least a substantial
part of a particular group.�[20] The same
interpretation was adopted earlier by the 1985 report of Benjamin Whitaker,
the Special Rapporteur to the United
Nations Sub-Commission on Prevention
of Discrimination and Protection of Minorities.[21]
The intent requirement of genocide under Article 4 of the Statute is therefore
satisfied where evidence shows that the alleged
perpetrator intended to destroy
at least a substantial part of the protected group. The determination of when
the targeted
part is substantial enough to meet this requirement may involve
a number of considerations. The numeric size of the targeted
part of the group
is the necessary and important starting point, though not in all cases the
ending point of the inquiry.
The number of individuals targeted should be
evaluated not only in absolute terms, but also in relation to the overall
size of the entire group. In addition to the numeric size of the targeted
portion, its prominence within the group can be a
useful consideration. If
a specific part of the group is emblematic of the overall group, or is essential
to its survival,
that may support a finding that the part qualifies as substantial
within the meaning of Article 4.[22]
The historical examples of genocide also suggest that the area of the perpetrators�
activity and control, as well as the possible
extent of their reach, should
be considered. Nazi Germany may have intended only to eliminate Jews within
Europe alone;
that ambition probably did not extend, even at the height of
its power, to an undertaking of that enterprise on a global scale.
Similarly,
the perpetrators of genocide in Rwanda did not seriously contemplate the elimination
of the Tutsi population
beyond the country�s borders.[23]
The intent to destroy formed by a perpetrator of genocide will always be limited
by the opportunity presented to him. While
this factor alone will not indicate
whether the targeted group is substantial, it can - in combination with other
factors
- inform the analysis.
These considerations, of course, are neither exhaustive nor dispositive.
They are only useful guidelines. The applicability
of these factors, as well
as their relative weight, will vary depending on the circumstances of a particular
case.
In this case, having identified the protected group as the national group
of Bosnian Muslims, the Trial Chamber concluded that
the part the VRS Main
Staff and Radislav Krstic targeted was the Bosnian Muslims of Srebrenica,
or the Bosnian Muslims
of Eastern Bosnia.[24]
This conclusion comports with the guidelines outlined above. The size of the
Bosnian Muslim population in Srebrenica prior
to its capture by the VRS forces
in 1995 amounted to approximately forty thousand people.[25]
This represented not only the Muslim inhabitants of the Srebrenica municipality
but also many Muslim refugees from the
surrounding region.[26]
Although this population constituted only a small percentage of the overall
Muslim population of Bosnia and Herzegovina
at the time, the importance of
the Muslim community of Srebrenica is not captured solely by its size.[27]
As the Trial Chamber explained, Srebrenica (and the surrounding Central Podrinje
region) were of immense strategic importance
to the Bosnian Serb leadership.
Without Srebrenica, the ethnically Serb state of Republica Srpska they sought
to create
would remain divided into two disconnected parts, and its access
to Serbia proper would be disrupted.[28]
The capture and ethnic purification of Srebrenica would therefore severely
undermine the military efforts of the Bosnian
Muslim state to ensure its viability,
a consequence the Muslim leadership fully realized and strove to prevent.
Control
over the Srebrenica region was consequently essential to the goal
of some Bosnian Serb leaders of forming a viable political
entity in Bosnia,
as well as to the continued survival of the Bosnian Muslim people. Because
most of the Muslim inhabitants
of the region had, by 1995, sought refuge within
the Srebrenica enclave, the elimination of that enclave would have accomplished
the goal of purifying the entire region of its Muslim population.
In addition, Srebrenica was important due to its prominence in the eyes
of both the Bosnian Muslims and the international community.
The town of Srebrenica
was the most visible of the �safe areas� established by the UN Security Council
in Bosnia. By 1995
it had received significant attention in the international
media. In its resolution declaring Srebrenica a safe area, the Security
Council
announced that it �should be free from armed attack or any other hostile act.�[29]
This guarantee of protection was re-affirmed by the commander of the UN Protection
Force in Bosnia (UNPROFOR) and reinforced
with the deployment of UN troops.[30]
The elimination of the Muslim population of Srebrenica, despite the assurances
given by the international community, would
serve as a potent example to all
Bosnian Muslims of their vulnerability and defenselessness in the face of
Serb military
forces. The fate of the Bosnian Muslims of Srebrenica would
be emblematic of that of all Bosnian Muslims.
Finally, the ambit of the genocidal enterprise in this case was limited
to the area of Srebrenica. While the authority of the
VRS Main Staff extended
throughout Bosnia, the authority of the Bosnian Serb forces charged with the
take-over of Srebrenica
did not extend beyond the Central Podrinje region.
From the perspective of the Bosnian Serb forces alleged to have had genocidal
intent in this case, the Muslims of Srebrenica were the only part of the Bosnian
Muslim group within their area of control.
In fact, the Defence does not argue that the Trial Chamber�s characterization
of the Bosnian Muslims of Srebrenica as a substantial
part of the targeted
group contravenes Article 4 of the Tribunal�s Statute. Rather, the Defence
contends that the Trial
Chamber made a further finding, concluding that the
part Krstic intended to destroy was the Bosnian Muslim men of military age
of Srebrenica.[31] In the Defence�s view,
the Trial Chamber then engaged in an impermissible sequential reasoning, measuring
the latter part
of the group against the larger part (the Bosnian Muslims
of Srebrenica) to find the substantiality requirement satisfied.[32]
The Defence submits that if the correct approach is properly applied, and
the military age men are measured against the
entire group of Bosnian Muslims,
the substantiality requirement would not be met.[33]
The Defence misunderstands the Trial Chamber�s analysis. The Trial Chamber
stated that the part of the group Radislav Krstic
intended to destroy was
the Bosnian Muslim population of Srebrenica.[34]
The men of military age, who formed a further part of that group, were not
viewed by the Trial Chamber as a separate, smaller
part within the meaning
of Article 4. Rather, the Trial Chamber treated the killing of the men of
military age as evidence
from which to infer that Radislav Krstic and some
members of the VRS Main Staff had the requisite intent to destroy all the
Bosnian Muslims of Srebrenica, the only part of the protected group relevant
to the Article 4 analysis.
In support of its argument, the Defence identifies the Trial Chamber�s
determination that, in the context of this case, �the
intent to kill the men
(of military age( amounted to an intent to destroy a substantial part of the
Bosnian Muslim group.�[35] The Trial Chamber�s
observation was proper. As a specific intent offense, the crime of genocide
requires proof of intent
to commit the underlying act and proof of intent
to destroy the targeted group, in whole or in part. The proof of the mental
state with respect to the commission of the underlying act can serve as evidence
from which the fact-finder may draw the
further inference that the accused
possessed the specific intent to destroy.
The Trial Chamber determined that Radislav Krstic had the intent to kill
the Srebrenica Bosnian Muslim men of military age.
This finding is one of
intent to commit the requisite genocidal act � in this case, the killing of
the members of the protected
group, prohibited by Article 4 2 (a) of the Statute.
From this intent to kill, the Trial Chamber also drew the further inference
that Krstic shared the genocidal intent of some members of the VRS Main Staff
to destroy a substantial part of the targeted
group, the Bosnian Muslims of
Srebrenica.
It must be acknowledged that in portions of its Judgement, the Trial Chamber
used imprecise language which lends support to
the Defence�s argument.[36]
The Trial Chamber should have expressed its reasoning more carefully. As explained
above, however, the Trial Chamber�s
overall discussion makes clear that it
identified the Bosnian Muslims of Srebrenica as the substantial part in this
case.
The Trial Chamber�s determination of the substantial part of the protected
group was correct. The Defence�s appeal on this issue
is dismissed.
B. The Determination of the Intent to Destroy
The Defence also argues that the Trial Chamber erred in describing the
conduct with which Radislav Krstic is charged as genocide.
The Trial Chamber,
the Defence submits, impermissibly broadened the definition of genocide by
concluding that an effort
to displace a community from its traditional residence
is sufficient to show that the alleged perpetrator intended to destroy
a protected
group.[37] By adopting this approach, the
Defence argues, the Trial Chamber departed from the established meaning of
the term genocide
in the Genocide Convention - as applying only to instances
of physical or biological destruction of a group - to include geographic
displacement.[38]
The Genocide Convention, and customary international law in general, prohibit
only the physical or biological destruction of
a human group.[39]
The Trial Chamber expressly acknowledged this limitation, and eschewed any
broader definition. The Chamber stated: �(C(ustomary
international law limits
the definition of genocide to those acts seeking the physical or biological
destruction of all
or part of the group. (A(n enterprise attacking only the
cultural or sociological characteristics of a human group in order
to annihilate
these elements which give to that group its own identity distinct from the
rest of the community would not
fall under the definition of genocide.�[40]
Given that the Trial Chamber correctly identified the governing legal principle,
the Defence must discharge the burden of persuading
the Appeals Chamber that,
despite having correctly stated the law, the Trial Chamber erred in applying
it. The main evidence
underlying the Trial Chamber�s conclusion that the VRS
forces intended to eliminate all the Bosnian Muslims of Srebrenica was
the
massacre by the VRS of all men of military age from that community.[41]
The Trial Chamber rejected the Defence�s argument that the killing of these
men was motivated solely by the desire to eliminate
them as a potential military
threat.[42] The Trial Chamber based this
conclusion on a number of factual findings, which must be accepted as long
as a reasonable
Trial Chamber could have arrived at the same conclusions.
The Trial Chamber found that, in executing the captured Bosnian Muslim
men,
the VRS did not differentiate between men of military status and civilians.[43]
Though civilians undoubtedly are capable of bearing arms, they do not constitute
the same kind of military threat as professional
soldiers. The Trial Chamber
was therefore justified in drawing the inference that, by killing the civilian
prisoners, the
VRS did not intend only to eliminate them as a military danger.
The Trial Chamber also found that some of the victims were severely
handicapped
and, for that reason, unlikely to have been combatants.[44]
This evidence further supports the Trial Chamber�s conclusion that the extermination
of these men was not driven solely
by a military rationale.
Moreover, as the Trial Chamber emphasized, the term �men of military age�
was itself a misnomer, for the group killed by the
VRS included boys and elderly
men normally considered to be outside that range.[45]
Although the younger and older men could still be capable of bearing arms,
the Trial Chamber was entitled to conclude that
they did not present a serious
military threat, and to draw a further inference that the VRS decision to
kill them did
not stem solely from the intent to eliminate them as a threat.
The killing of the military aged men was, assuredly, a physical
destruction,
and given the scope of the killings the Trial Chamber could legitimately draw
the inference that their extermination
was motivated by a genocidal intent.
The Trial Chamber was also entitled to consider the long-term impact that
the elimination of seven to eight thousand men from
Srebrenica would have
on the survival of that community. In examining these consequences, the Trial
Chamber properly focused
on the likelihood of the community�s physical survival.
As the Trial Chamber found, the massacred men amounted to about one
fifth
of the overall Srebrenica community.[46]
The Trial Chamber found that, given the patriarchal character of the Bosnian
Muslim society in Srebrenica, the destruction
of such a sizeable number of
men would �inevitably result in the physical disappearance of the Bosnian
Muslim population
at Srebrenica.�[47] Evidence
introduced at trial supported this finding, by showing that, with the majority
of the men killed officially listed
as missing, their spouses are unable to
remarry and, consequently, to have new children.[48]
The physical destruction of the men therefore had severe procreative implications
for the Srebrenica Muslim community,
potentially consigning the community
to extinction.
This is the type of physical destruction the Genocide Convention is designed
to prevent. The Trial Chamber found that the Bosnian
Serb forces were aware
of these consequences when they decided to systematically eliminate the captured
Muslim men.[49] The finding that some members
of the VRS Main Staff devised the killing of the male prisoners with full
knowledge of the
detrimental consequences it would have for the physical survival
of the Bosnian Muslim community in Srebrenica further supports
the Trial Chamber�s
conclusion that the instigators of that operation had the requisite genocidal
intent.
The Defence argues that the VRS decision to transfer, rather than to kill,
the women and children of Srebrenica in their custody
undermines the finding
of genocidal intent.[50] This conduct,
the Defence submits, is inconsistent with the indiscriminate approach that
has characterized all previously
recognized instances of modern genocide.[51]
The decision by Bosnian Serb forces to transfer the women, children and
elderly within their control to other areas of Muslim-controlled
Bosnia could
be consistent with the Defence argument. This evidence, however, is also susceptible
of an alternative interpretation.
As the Trial Chamber explained, forcible
transfer could be an additional means by which to ensure the physical destruction
of the Bosnian Muslim community in Srebrenica. The transfer completed the
removal of all Bosnian Muslims from Srebrenica,
thereby eliminating even the
residual possibility that the Muslim community in the area could reconstitute
itself.[52] The decision not to kill the
women or children may be explained by the Bosnian Serbs� sensitivity to public
opinion. In
contrast to the killing of the captured military men, such an
action could not easily be kept secret, or disguised as a military
operation,
and so carried an increased risk of attracting international censure.
In determining that genocide occurred at Srebrenica, the cardinal question
is whether the intent to commit genocide existed.
While this intent must be
supported by the factual matrix, the offence of genocide does not require
proof that the perpetrator
chose the most efficient method to accomplish his
objective of destroying the targeted part. Even where the method selected
will not implement the perpetrator�s intent to the fullest, leaving that destruction
incomplete, this ineffectiveness alone
does not preclude a finding of genocidal
intent. The international attention focused on Srebrenica, combined with the
presence
of the UN troops in the area, prevented those members of the VRS
Main Staff who devised the genocidal plan from putting it into
action in the
most direct and efficient way. Constrained by the circumstances, they adopted
the method which would allow
them to implement the genocidal design while
minimizing the risk of retribution.
The Trial Chamber - as the best assessor of the evidence presented at trial
- was entitled to conclude that the evidence of
the transfer supported its
finding that some members of the VRS Main Staff intended to destroy the Bosnian
Muslims in Srebrenica.
The fact that the forcible transfer does not constitute
in and of itself a genocidal act[53] does
not preclude a Trial Chamber from relying on it as evidence of the intentions
of members of the VRS Main Staff. The
genocidal intent may be inferred, among
other facts, from evidence of �other culpable acts systematically directed
against
the same group.�[54]
The Defence also argues that the record contains no statements by members
of the VRS Main Staff indicating that the killing
of the Bosnian Muslim men
was motivated by genocidal intent to destroy the Bosnian Muslims of Srebrenica.[55]
The absence of such statements is not determinative. Where direct evidence
of genocidal intent is absent, the intent may
still be inferred from the factual
circumstances of the crime.[56] The inference
that a particular atrocity was motivated by genocidal intent may be drawn,
moreover, even where the individuals
to whom the intent is attributable are
not precisely identified. If the crime committed satisfies the other requirements
of genocide, and if the evidence supports the inference that the crime was
motivated by the intent to destroy, in whole or
in part, a protected group,
a finding that genocide has occurred may be entered.
In this case, the factual circumstances, as found by the Trial Chamber,
permit the inference that the killing of the Bosnian
Muslim men was done with
genocidal intent. As already explained, the scale of the killing, combined
with the VRS Main Staff�s
awareness of the detrimental consequences it would
have for the Bosnian Muslim community of Srebrenica and with the other actions
the Main Staff took to ensure that community�s physical demise, is a sufficient
factual basis for the finding of specific
intent. The Trial Chamber found,
and the Appeals Chamber endorses this finding, that the killing was engineered
and supervised
by some members of the Main Staff of the VRS.[57]
The fact that the Trial Chamber did not attribute genocidal intent to a particular
official within the Main Staff may have
been motivated by a desire not to
assign individual culpability to persons not on trial here. This, however,
does not undermine
the conclusion that Bosnian Serb forces carried out genocide
against the Bosnian Muslims.
Among the grievous crimes this Tribunal has the duty to punish, the crime
of genocide is singled out for special condemnation
and opprobrium. The crime
is horrific in its scope; its perpetrators identify entire human groups for
extinction. Those
who devise and implement genocide seek to deprive humanity
of the manifold richness its nationalities, races, ethnicities and
religions
provide. This is a crime against all of humankind, its harm being felt not
only by the group targeted for destruction,
but by all of humanity.
The gravity of genocide is reflected in the stringent requirements which
must be satisfied before this conviction is imposed.
These requirements �
the demanding proof of specific intent and the showing that the group was
targeted for destruction
in its entirety or in substantial part � guard against
a danger that convictions for this crime will be imposed lightly. Where
these
requirements are satisfied, however, the law must not shy away from referring
to the crime committed by its proper
name. By seeking to eliminate a part
of the Bosnian Muslims, the Bosnian Serb forces committed genocide. They targeted
for extinction the forty thousand Bosnian Muslims living in Srebrenica, a
group which was emblematic of the Bosnian Muslims
in general. They stripped
all the male Muslim prisoners, military and civilian, elderly and young, of
their personal belongings
and identification, and deliberately and methodically
killed them solely on the basis of their identity. The Bosnian Serb forces
were aware, when they embarked on this genocidal venture, that the harm they
caused would continue to plague the Bosnian
Muslims. The Appeals Chamber states
unequivocally that the law condemns, in appropriate terms, the deep and lasting
injury
inflicted, and calls the massacre at Srebrenica by its proper name:
genocide. Those responsible will bear this stigma, and it
will serve as a
warning to those who may in future contemplate the commission of such a heinous
act.
In concluding that some members of the VRS Main Staff intended to destroy
the Bosnian Muslims of Srebrenica, the Trial Chamber
did not depart from the
legal requirements for genocide. The Defence appeal on this issue is dismissed.
III. ALLEGED FACTUAL ERRORS RELATING TO JOINT CRIMINAL
ENTERPRISE TO COMMIT GENOCIDE
As already stated, the crime of genocide was committed at Srebrenica in
July 1995, a determination which the Trial Chamber correctly
made. The Defence
argues, however, that even if the finding of genocide was correct, the Trial
Chamber erred in finding
the evidence sufficient to establish that Radislav
Krstic was a member of a joint criminal enterprise to commit genocide.[58]
It is well established that the Appeals Chamber will not lightly overturn
findings of fact made by a Trial Chamber.[59]
Where the Defence alleges an erroneous finding of fact, the Appeals Chamber
must give deference to the Trial Chamber that
received the evidence at trial,
and it will only interfere in those findings where no reasonable trier of
fact could have
reached the same finding or where the finding is wholly erroneous.[60]
Furthermore, the erroneous finding will be revoked or revised only if the
error occasioned a miscarriage of justice.[61]
The Appeals Chamber has taken the view that, when the Prosecution relies
upon proof of a state of mind of an accused by inference,
that inference must
be the only reasonable inference available on the evidence.[62]
The Trial Chamber based its conclusion that Radislav Krstic shared the
intent of a joint criminal enterprise to commit genocide
on inferences drawn
from its findings with respect to his knowledge about the situation facing
the Bosnian Muslim civilians
after the take-over of Srebrenica, his interaction
with the main participants of the joint criminal enterprise, and the evidence
it accepted as establishing that resources and soldiers under his command
and control were used to facilitate the killings.
Relying on this evidence,
the Trial Chamber held that, from the evening of 13�July 1995, Radislav Krstic
intentionally
participated in the joint criminal enterprise to execute the
Bosnian Muslims of Srebrenica.[63]
In attacking this conclusion, the Defence advances three arguments. First,
the Defence challenges the Trial Chamber�s finding
that Radislav Krstic assumed
effective command over the Drina Corps and Drina Corps assets on 13 July 1995,
and not later.[64] Secondly, the Defence
contests the Trial Chamber�s rejection of its argument that a parallel chain
of command, running
from the Main Staff of the VRS through the security organs
of the Drina Corps, excluded Radislav Krstic from participation in
(and even
knowledge of) the executions.[65] Thirdly,
the Defence challenges the finding of the Trial Chamber that Krstic directly
participated in the executions and
argues that, even if the evidence before
the Trial Chamber is sufficient to establish knowledge on his part about the
genocide
committed in Srebrenica, it is not sufficient to establish that he
intended to commit genocide.[66]
As a final, additional argument, the Defence submits that Radislav Krstic
could not reasonably have foreseen the commission
of the opportunistic crimes
at Potocari on 12 and 13 July 1995, and that the crimes were not a natural
and foreseeable
consequence of the ethnic cleansing campaign.[67]
The Appeals Chamber will consider the first three of these arguments, and
will then detail its analysis of Krstic�s criminal
liability in light of its
findings, before considering the final, additional argument.
A. The Trial Chamber�s finding as to the date
on which Radislav Krstic assumed command of the Drina Corps
The Trial Chamber found that Radislav Krstic became the de facto commander
of the Drina Corps on the evening of 13�July 1995, with the formal confirmation
of his command following a 15
July 1995 decree issued by President Karadzic.[68]
The Defence challenges this finding, relying on the fact that the Presidential
Decree appointing him as Corps Commander
provided that the appointment was
to take effect only on 15�July.[69] The
Defence also relies on the fact that the VRS formalities, which had to be
completed prior to the transfer of the command,
were not completed until 20�July,[70]
and on the evidence showing that General Zivanovic retained command until
that date.[71]
The arguments the Defence now puts forward were extensively considered
by the Trial Chamber. The Chamber, relying on eye-witness
and documentary
evidence, found that despite the date specified by the decree, the transfer
of command to Radislav Krstic
took place on 13�July. In support of its finding,
the Trial Chamber relied, for example, on the evidence that a formal ceremony,
attended by the officers of the Drina Corps at Vlasenica Headquarters, at
which General Mladic conferred the command on
Krstic, took place on 13�July.[72]
The Trial Chamber also concluded that the exigencies of war may have necessitated
dispensation with the formal procedures
for the transfer of the command.[73]
The Trial Chamber considered the evidence of General Zivanovic�s continued
role in the Drina Corps and found that that
evidence was outweighed by the
evidence that Krstic assumed and began to exercise command on 13 July 1995.[74]
The Trial Chamber�s conclusion is further supported by the combat report dated
13� July, and signed by Radislav Krstic
as the Commander, which the Prosecution
presented in this Appeal as additional evidence.[75]
The conclusions of the Trial Chamber are entirely reasonable and supported
by ample evidence. The Defence has failed to demonstrate
any error on the
part of the Trial Chamber, much less that the finding was one that no reasonable
Trial Chamber could have
reached.
B. The Trial Chamber�s rejection of the Defence
of Parallel Chain of Command
The Defence next argues that the Trial Chamber erred in rejecting its claim
that the executions were ordered and supervised
through a parallel chain of
command maintained by the VRS security forces, over which Radislav Krstic
did not have control.
According to the Defence, this chain of command originated
with General Mladic, went through his Security Commander, Colonel
Beara of
the VRS Main Staff, to Colonel Popovic of the Drina Corps and finally to the
Zvornik Brigade Security Officer,
Dragan Nikolic.[76]
Acting through this parallel chain of command, the Defence submits, the Main
Staff of the VRS could and did commandeer
Drina Corps assets without consulting
the Drina Corps Command.[77]
The Defence�s argument is an exact repetition of the argument it presented
at trial. This argument was fully considered by the
Trial Chamber. The Trial
Chamber acknowledged that General Mladic exercised some control over the Drina
Corps within its
zone of responsibility. The Chamber concluded, however, that
the evidence could not support a finding that the Drina Corps command
was
completely excluded from all knowledge or authority with respect to the involvement
of its troops and assets in the
execution of the Bosnian Muslim civilians.[78]
1. The Trial Chamber�s finding that the Main Staff
of the VRS and the MUP forces subordinate to it received co-operation
from Radislav Krstic and the Drina Corps
(a) The treatment of prisoners
The Defence argues, as it did at trial, that the Trial Chamber erred in
finding that the Main Staff of the VRS and the MUP forces
subordinate to it
received co- operation from Radislav Krstic and the Drina Corps in carrying
out the executions. The Defence
relies on an order issued on 13�July 1995
by General Gvero, the Assistant Commander of the Main Staff, directing that
the
�Superior Command� be immediately informed as to the location where the
prisoners were taken. The Defence argues that this order
shows that the Main
Staff assumed responsibility for the prisoners.[79]
The Defence also relies on General Mladic�s statement to the prisoners held
at Sandici Meadow and Nova Kasaba that General
Mladic was personally making
arrangements for their exchange or transportation.[80]
Finally, the Defence relies on the fact that the Trial Chamber was unable
to conclude beyond reasonable doubt that the
Drina Corps had participated
in the capture of the prisoners.[81]
As the Trial Chamber explained, however, General Gvero�s order was issued
to the Drina Corps Command and the relevant subordinate
Brigades,[82]
and therefore constitutes strong evidence that the Drina Corps knew about
the capture of the prisoners and acted in �close
co-ordination and co-operation�
with the MUP units.[83] The Trial Chamber
also considered the appearance of General Mladic and his address to the prisoners
at Sandici Meadow and
Nova Kosaba. These actions were consistent with General
Mladic�s position as the Commander of all VRS forces, including the
Drina
Corps, and do not support an inference that subordinate commanders, such as
Krstic, were excluded from the normal
military chain of command.[84]
The absence of a finding by the Trial Chamber that the Drina Corps participated
in the capture of the prisoners is similarly
inapposite. Relying on considerable
evidence, the Trial Chamber established that the Drina Corps and Radislav
Krstic knew
that thousands of Bosnian Muslim prisoners had been captured on
13�July 1995, and continued to be informed about their situation.[85]
In advancing a similar argument with respect to the execution of the prisoners,
the Defence points to the fact that these executions
were conducted by the
10th Sabotage Detachment of the Main Staff, with General Mladic appearing
at the execution site at
Orahovac.[86]
The Defence also relies on an intercepted conversation of 13�July 1995, in
which General Zivanovic, the General-Major in
command of the Drina Corps before
Radislav Krstic, expressed concern about identifying war criminals among the
prisoners.
This conversation, the Defence submits, shows that even General�
Zivanovic was unaware that the prisoners were being executed.[87]
As further evidence of the Drina Corps Command�s non-involvement, the Defence
quotes from an intercepted conversation of 17�July
1995, during which Radislav
Krstic asked a subordinate: �On whose approval did you send soldiers down
there?� The answer
was: �On orders from the Main Staff.�[88]
The Defence also points to the order of 17 July 1995 issued by General Mladic
to the Zvornik Brigade, which stated that
personnel from the Main Staff would
be �responsible for command of the forces carrying out the task.�[89]
Finally, the Defence relies on combat reports of Colonel Pandurevic, the Zvornik
Brigade Commander, in which Colonel Pandurevic
complained that the placement
of the prisoners in the zone of his Brigade created a great burden, and he
threatened to
have them released.[90] These
reports, the Defence argues, show that Colonel Pandurevic was unaware that
the Main Staff had already arranged for
the prisoners to be executed.[91]
The evidence on which the Defence relies was considered by the Trial Chamber
when it analysed the respective involvement of
the Main Staff and the Drina
Corps Command in the capture and detention of the Bosnian Muslim prisoners.[92]
The Trial Chamber accepted that the evidence demonstrated that the Main Staff
was �heavily involved in the direction of
events following the take over of
Srebrenica,� and that there were �indications that Drina Corps units were
not always
informed or consulted about what the Main Staff was doing in their
area of concern during the week following 11 July.�[93]
The Trial Chamber found, however, that the evidence made it �abundantly clear
that the Main Staff could not, and did not,
handle the entire Srebrenica follow-up
operation on its own and at almost every stage had to, and did, call upon
Drina
Corps resources for assistance.�[94]
The Defence does not dispute this finding, which the Appeals Chamber accepts.
(b) The selection of sites
The Defence next argues that the selection of sites for the detention of
the prisoners, initially in Bratunac, was conducted
entirely by the Main Staff
with no participation by the Drina Corps. Relying on the vehicle records of
the Zvornik Brigade,
the Defence argues that contrary to the Trial Chamber�s
finding, the Zvornik Brigade did not know that one of its vehicles was
being
used in this operation.[95] According to
the Defence, the intercepted conversation of 14 July 1995 between the Zvornik
Brigade duty officer and Colonel
Beara, in which the issue of the captured
prisoners was discussed, confirms that Colonel Beara was not following the
normal
chain of command because he was speaking to the duty officer directly.
This, the Defence claims, confirms that the Main Staff
could and did utilise
Zvornik Brigade assets without going through the Zvornik Brigade Command.[96]
Once again, each of the arguments made by the Defence was presented to
the Trial Chamber. The Trial Chamber found that the Zvornik
Brigade must have
known the purpose for which the vehicle was being used, as vehicle records
established that it was operated
by members of the Zvornik Brigade military
police.[97] The intercept of 14 July, on
which the Defence relies, does not undermine this finding or otherwise support
the Defence�s
argument. Although the Trial Chamber did not conclude that the
Drina Corps Command was directly involved in making the arrangements
to detain
the men at Bratunac, it concluded that the Drina Corps was aware that those
men were being so detained.[98] This finding
is supported by sufficient evidence, and the Appeals Chamber accepts it.
(c) Use of Drina Corps resources without the knowledge
of Drina Corps Command
The Defence�s argument, then, is that even though Drina Corps resources
were utilised in the executions, the requisition of
these resources was done
without the knowledge of the Drina Corps Command. In rejecting this argument,
the Trial Chamber
relied on the fact that, in accordance with the military
principles of the VRS, the Main Staff could not have come into the
Drina Corps
zone of responsibility and assumed complete control of its assets and personnel
without the consent of the
Corps Command.[99]
The Trial Chamber also emphasised the involvement of the Drina Corps in the
organisation of the buses for the transportation
of the Bosnian Muslim civilians,
which contradicted the theory that the Main Staff had taken over direct command
of subordinate
Drina Corps Brigades.[100]
As the Trial Chamber explained, the Drina Corps Command was kept informed
by the Main Staff about activities within its
zone. This was shown, for example,
in an intercept of 15 July, in which Colonel Beara made an urgent request
to Krstic
for assistance and was directed to contact the Commander of the
Bratunac Brigade. [101] This evidence,
in the Trial Chamber�s estimation, strongly undermined the notion that the
Main Staff was directing activities
of the Drina Corps subordinate units without
consulting the Drina Corps Command.[102]
The Defence argues that the Trial Chamber failed to recognise the significance
of the Security Service within the VRS, which
in accordance with the traditions
of Communist Yugoslavia, still operated independently of the traditional chain
of command.[103] In particular, the Defence
argues, the VRS security organs were under no obligation to report to the
military command but
instead reported to the command of their own security
service.[104] In this case, that meant
Colonel Popovic reporting directly to Colonel Beara while bypassing Krstic.
In the Defence�s view,
this fact is confirmed by the absence of any intercepted
conversations between Colonel Popovic and Krstic during the period
of 13-17
July 1995, when Colonel Popovic was assisting Colonel Beara.
In support of this argument, the Defence adduced as additional evidence
three police reports made by Dragomir Vasic, Chief of
the Centre of Public
Security at Zvornik, to the Ministry of the Interior (MUP) of Republika Srpska,
the Headquarters of
the Police Forces in Biljelani, and the Cabinet of Ministers
and the Agency of Public Security.[105]
In the first report, dated 12 July, Dragomir Vasic stated that the evacuation
and transportation of the civilian population
of Srebrenica was ongoing, and
he provided information on the situation regarding Bosnian Muslim forces and
civilians in
the area. The second report, dated 13�July 1995, discussed the
confrontation between the MUP and the Bosnian Muslim soldiers
and stated that
the MUP �have no cooperation or assistance from VRS in blocking and annihilation
of the huge number of
enemy soldiers.� Vasic therefore expected a �great number
of problems until the end of the action because MUP is working alone
in this
action.� The final report, also dated 13�July 1995, documents a meeting held
with General Mladic, at which he informed
the others attending that the VRS
was resuming the Zepa operation and that all other tasks were being yielded
to the MUP.
These tasks included the evacuation by bus of 15,000 civilians
remaining in Srebrenica towards Kladanj, the liquidation of 8,000
Muslim soldiers
trapped in the wooded terrain around Konjevic Polje, and ensuring security
for all essential facilities
in the town of Srebrenica.
Lastly, the Defence relies on a statement of a protected witness that Radislav
Krstic and the Drina Corps Command were unaware
of the activities carried
out by military police units of the Zvornik Brigade, and that, in general,
the security organs
acted for the Main Staff independently of the normal chain
of command. The Defence conceded, however, that in light of the witness�s
failure to appear at the Appeal hearing to confirm his testimony, little weight
could be attached to the statement.[106]
These reports do indeed lend support to the Defence�s argument that the
MUP was acting on its own in carrying out the executions.
The Trial Chamber,
however, did not disagree. In fact, it expressly refused to �discount the
possibility that the execution
plan was initially devised by members of the
VRS Main Staff without consultation with the Drina�Corps command generally
and Radislav Krstic in particular,� and that General Mladic may have directed
the operation. [107] As the Trial Chamber
emphasised, however, the Main Staff lacked the resources to carry out the
executions on its own and
therefore had to call on the resources of the Drina
Corps. The Trial Chamber found, moreover, that the Drina Corps Command knew
about the Main Staff�s requests and about the subsequent use of the Corps�
resources in the executions. The Defence�s challenges
to these findings have
already been rejected.[108]
In support of the Trial Chamber�s findings, the Prosecution adduced, as
rebuttal material on Appeal, two combat reports of 16
and 18 July 1995, signed
by Radislav Krstic as the Commander of the Drina Corps. In both reports, Krstic
directed his troops
to co-ordinate with the MUP in the blockage and capture
of the Bosnian Muslims escaping from the enclave.[109]
These reports support the Trial Chamber�s finding that the Drina�Corps aided
the forces of the MUP in the task of blocking
and capturing the escaping Bosnian
Muslims, and that they co-ordinated their military efforts with the MUP forces.
The Trial Chamber�s rejection of the Defence�s argument as to the parallel
chain of command, even when examined in light of
the Defence�s additional
evidence, is not one that no reasonable trier of fact could have made.
C. The Trial Chamber�s finding that Radislav
Krstic directly participated in the executions
As stated above, the Defence challenges the finding of the Trial Chamber
that Radislav Krstic directly participated in the executions
and argues that,
even if the evidence before the Trial Chamber is sufficient to establish knowledge
on his part of the
genocide committed in Srebrenica, it is not sufficient
to establish that he intended to commit genocide.
1. The Trial Chamber�s conclusions regarding the
Bratunac Brigade�s participation in the executions
The Defence argues that the Trial Chamber erred in concluding that on 16�July
1995 members of the Bratunac Brigade, a unit of
the Drina Corps subordinate
to Radislav Krstic, participated in the killings at Branjevo Farm and the
Pilica Cultural Dom.[110]
(a) The evidence of Drazen Erdemovic
The Defence argues that the evidence of Drazen Erdemovic (a member of the
10th Sabotage Brigade who participated in the killings
at Branjevo Farm),
which formed the crucial factual basis for the Trial Chamber�s conclusion,
did not in fact establish
that the men participating in the executions were
from the Bratunac Brigade instead of simply originating from the town of Bratunac.[111]
The Defence also claims that the Trial Chamber erroneously interpreted an
intercept of 16�July 1995 between Colonel Popovic
and Mr. Rasic, a duty officer
of the Drina Corps, as referring to the deployment of men from the Bratunac
Brigade to assist
in the executions. In fact, the Defence submits, that intercept
referred to their deployment to the front lines of the battle
led by Colonel
Pandurevic against a column formed of able-bodied civilians and members of
the 28th Division, and which
took to the woods in an attempt to break through
to Bosnian Muslim-held territories to the north of Srebrenica.[112]
The Defence argues that this interpretation is supported by the Zvornik Brigade
Combat Report of 16�July 1995 prepared
by Colonel Pandurevic.[113]
The evidence given by Mr. Erdemovic was that he and other members of his
unit, the 10th Sabotage Unit, had received orders relating
to the executions
on the morning of 16�July 1995. In carrying out those orders, they first stopped
at the Zvornik Brigade
headquarters. From there, they were accompanied by
an unidentified Lieutenant Colonel and two Drina Corps military police officers
to the Branjevo Military Farm. After about half an hour, buses of Bosnian
Muslim civilians began to arrive escorted by
military police officers wearing
the insignia of the Drina Corps, who supervised the unloading of the civilians
from the
buses.[114] The executions commenced
at 10.00 hours and continued until 15.00 hours. Between 13.00 and 14.00 hours
ten soldiers joined
Mr. Erdemovic�s unit to assist in the shootings. Once
the executions at Branjevo Military Farm were complete, Mr. Erdemovic
and
other members of his unit refused to carry out further killings and went to
a caf�. The men that had arrived from Bratunac
went to the Pilica Dom where
they continued with the executions. They arrived in the caf� after 15-20 minutes
and stated
that �everything was over.�[115]
With respect to the identification of the men from Bratunac, Mr. Erdemovic�s
evidence was that he had heard that they were from
Bratunac, they were dressed
in VRS uniform and they knew some of the Bosnian Muslim men of Srebrenica,
which suggested
to him that they were local. Mr. Erdemovic provided no evidence
that these men belonged to the Bratunac Brigade, rather than
to other military
units. In fact, the only man Mr. Erdemovic positively identified from photographs
belonged to another
military unit, one not commanded by Krstic. As such, the
evidence of Mr. Erdemovic is insufficient to establish that the men
were from
the Bratunac Brigade.
The insufficiency of Mr. Erdemovic�s evidence is highlighted by the testimony
of the Prosecution military expert, Richard Butler.
Correcting evidence he
gave during trial, Mr. Butler made clear during the Appeal hearing that Mr.
Erdemovic had never
said that the men who were sent to assist in the executions
were from the Bratunac Brigade, only that they were from the town
of Bratunac.[116]
Mr. Butler also confirmed that one of the men referred to by Mr. Erdemovic
was identified as being a member of the Panteri
unit from the East Bosnia
Corps.[117] In light of this fact, Mr.
Butler now concluded that the men that arrived to assist in the executions
did not belong to
the Bratunac Brigade.[118]
In light of the above, the Appeals Chamber finds that the Trial Chamber�s
conclusion that the men of the Bratunac Brigade participated
in the executions
at Branjevo Farm and the Pilica Dom on 16 July 1995 is not one that a reasonable
trier of fact could
have made. There was no direct evidence to establish the
involvement of the Drina Corps in carrying out these executions.
(b) The Zvornik Brigade Report
The Trial Chamber also based its finding that the men participating in
the executions were from the Bratunac Brigade on a Zvornik
Brigade Report
of 16 July 1995, which stated that, in addition to the regular troops of the
Zvornik Brigade forces, two
platoons from the Bratunac Brigade were operating
under its command.[119] This evidence,
however, can only establish that platoons from the Bratunac Brigade were operating
under the command of
the Zvornik Brigade; it does not establish the involvement
of those troops in the executions. In fact, the Trial Chamber only
relied
upon this evidence to establish that Bratunac troops were in the vicinity
at that time in order to corroborate the
evidence given by Mr. Erdemovic.[120]
(c) The Trial Chamber�s findings with respect
to certain intercepts
(i) The intercept of 16 July 1995
The Trial Chamber also relied on an intercepted conversation of 16�July
1995, in which Colonel Popovic asked to be connected
to Radislav Krstic. When
told that Krstic was unavailable, he asked to be connected to the Commanding
Officer. Colonel
Popovic then spoke with Mr. Rasic, a duty officer of the
Drina Corps. Colonel Popovic reported to Mr. Rasic that he was �just
up there
� with the boss personally,� that he has �finished the job,� and that Mr.
Rasic should inform the �General.�[121]
Mr. Rasic asked Colonel Popovic whether the men from Colonel Blagojevic�s
command arrived on time, and Colonel Popovic
replied that these men were �up
there� but had arrived late and �that is why the Commander who was here had
problems.�
Relying upon the evidence given by Mr. Butler, the Trial Chamber
concluded that the reference to Colonel Popovic being �up there
� meant that
Colonel Popovic has just returned from an area north of Zvornik, (i.e. the
Pilica area) and that Mr. Rasic
(and therefore the Drina Corps Command) knew
of the executions that had occurred there.[122]
On appeal, however, Mr. Butler corrected the evidence that he gave at trial
in light of the evidence he had given in the Blagojevic trial.[123]
In particular, he explained, the second reference made to �up there� and the
problems resulting from the late arrival of
Colonel Blagojevic�s men were
a reference to the area of the battlefield towards the IKM (or Forward Command
Post) and
the Baljkovica area, where the most significant fighting took place.
The problems mentioned during the phone conversation concerned
the late arrival
of reinforcements, which resulted in a situation where Colonel Pandurevic
had to open a corridor to allow
the column of Bosnian Muslim men to go through.[124]
The Trial Chamber, however, had relied upon this intercept as further evidence
that the men were sent from the Bratunac
Brigade to assist in the executions
on 16�July 1995 following Colonel Beara�s request to Radislav Krstic for additional
men on the morning of 15 July.[125] In
light of the additional evidence given by Mr. Butler, this inference is unsustainable.
(ii) The Trial Chamber�s reliance on two further
intercepted conversations dated 15 July 1995
The Defence further argues that the Trial Chamber erroneously interpreted
an intercept of 15�July 1995 between Radislav Krstic
and Colonel Beara as
establishing that Krstic agreed to provide, and did provide, Colonel Beara
with men from the Bratunac
Brigade to assist in the executions. In fact, the
Defence argues, the facts show that Radislav Krstic never followed up on Colonel
Beara�s request.[126]
The Trial Chamber relied upon two other intercepted conversations, both
dated 15�July, as establishing that Krstic provided
direct assistance to the
executions.[127] In the first intercept,
Colonel Beara requested General Zivanovic to send more men. General Zivanovic
refused this request,
and referred Colonel Beara to Radislav Krstic. Colonel
Beara then urgently requested the assistance of Krstic in the distribution
of �3,500 parcels,� telling him that �Furtula didn�t carry out the boss�s
order.� The Trial Chamber concluded that this
was a code term used in military
communications to signify captured Muslim men who were to be killed. Krstic
suggested
that Colonel Beara seek help from other units, including the Bratunac
and Milici Brigades of the Drina Corps, as well as the
MUP. Colonel Beara
replied that they are not available. Krstic then stated that he would see
what he could do.[128] The Trial Chamber
interpreted this response as evidencing an undertaking to secure the assistance
requested.[129]
The Trial Chamber based its conclusion that the term �parcel� was a reference
to Bosnian Muslims on evidence in other intercepts
in which that term was
used, and more specifically on an intercept in which a reference to �people�
was corrected to �parcels.�[130] As for
the Trial Chamber�s conclusion that the word �distribute� referred to killing,
that conclusion appears to be based
solely on the Prosecution�s opening statement,
where it argued that �distribute� meant to kill.[131]
The Trial Chamber found the Prosecution�s argument persuasive, and, in the
absence of any further examination of the term,
the Trial Chamber does not
appear to have based its understanding of the word �distribute� on anything
more than the Prosecution�s
assertion. While such an inference may be drawn
from this coded language, its meaning is insufficiently clear to conclude
that no alternative interpretation is possible. Moreover, Krstic�s statements
to Colonel Beara that he �will see what he
can do� cannot support the weight
of reliance the Trial Chamber placed upon it. Rather than a firm promise of
help, the
statements could have been a refusal to commit, an effort by Krstic
to end the conversation without saying a firm �no� but also
without assuming
an unambiguous obligation to help.
(d) The considerations of the Appeals Chamber
Given the evidence relied upon by the Trial Chamber, and the corrections
made to that evidence by Mr. Butler, the finding of
the Trial Chamber that
men from the Bratunac Brigade were dispatched by Krstic to assist in the executions
at Branjevo
Farm and Pilica Dom is one that no reasonable trier of fact could
have made. The evidence fails to establish the direct involvement
of the Drina
Corps in carrying out the executions, and as such cannot be relied upon as
evidence of Radislav Krstic�s direct
involvement in assisting the executions.
The evidence does, however, establish the involvement of Drina Corps personnel
and assets in facilitating the executions. The
Trial Chamber�s finding on
that point is supported by Mr. Erdemovic�s evidence that his unit was accompanied
to the Branjevo
Military Farm by two Drina Corps military police officers,
and that military police officers wearing the insignia of the Drina
Corps
escorted the buses of Bosnian Muslim civilians to the Branjevo Military Farm,
and supervised their unloading.
D. The Appeals Chamber�s Analysis of Radislav
Krstic�s Criminal Responsibility
It remains for the Appeals Chamber to determine whether the Trial Chamber
erred in finding that Radislav Krstic shared the genocidal
intent of a joint
criminal enterprise to commit genocide against the Bosnian Muslims of Srebrenica.
The Appeals Chamber
will now proceed with its analysis of Krstic�s criminal
responsibility in light of its findings above.
1. The Trial Chamber�s finding that Radislav Krstic
shared the intent of a joint criminal enterprise to commit genocide
The Defence argues that in finding that Radislav Krstic shared the intent
to commit genocide, the Trial Chamber failed to accord
to him the presumption
of innocence. The Defence identifies a number of instances in which the Trial
Chamber used the language
�must have known,� �could not have failed to know,�
and �could only surmise� as illustrative of this failure.[132]
The Defence argues that the Trial Chamber adopted this language to mask the
lack of a proper evidentiary basis for its
finding that Krstic possessed the
intent to commit genocide.[133]
The Trial Chamber properly articulated the standard of proof to be applied
to the Defence as being one of proof beyond reasonable
doubt.[134]
The Trial Chamber�s reliance upon language such as �must have known� is indicative
of the nature of the case against Krstic
being one based upon circumstantial
evidence. While the Trial Chamber should have used less ambiguous language
when making
findings concerning Krstic�s knowledge and intent, the regrettable
choice of phraseology alone is not sufficient to overturn
the Trial Chamber�s
findings.
The Defence argues, however, that even if the Trial Chamber properly articulated
the standard of proof, its conclusion that
Krstic shared the genocidal intent
of the joint criminal enterprise is erroneous. The Appeals Chamber therefore
considers
the evidence on which the Trial Chamber relied to establish that
Krstic shared the intent of the joint criminal enterprise to
commit genocide.
As already stated, the case against Radislav Krstic was one based on circumstantial
evidence, and the finding of the Trial Chamber
was largely based upon a combination
of circumstantial facts. In convicting Krstic as a participant in a joint
criminal
enterprise to commit genocide, the Trial Chamber relied upon evidence
establishing his knowledge of the intention on the part
of General Mladic
and other members of the VRS Main Staff to execute the Bosnian Muslims of
Srebrenica, his knowledge of
the use of personnel and resources of the Drina
Corps to carry out that intention given his command position, and upon evidence
that Radislav Krstic supervised the participation of his subordinates in carrying
out those executions.
2. Contacts between Radislav Krstic and other participants
in the joint criminal enterprise
The Trial Chamber found the contacts between Krstic and General Mladic
to be crucial to establishing Radislav Krstic�s genocidal
intent. The parties
agreed that General Mladic was the main figure behind the killings. The Trial
Chamber found that Generals
Krstic and Mladic were in constant contact throughout
the relevant period. [135] The Trial Chamber
concluded that �if General Mladic knew about the killings, it would be natural
for Krstic to know as
well�.[136]
(a) Radislav Krstic�s presence at the meetings
in the Hotel Fontana
Reaching this conclusion, the Trial Chamber first relied upon the presence
of Krstic at the second and third of three meetings
convened by General Mladic
at the Hotel Fontana on 11 and 12 July 1995. The fate of the Bosnian Muslims
following the fall
of Srebrenica was discussed at these meetings.[137]
Based on his presence at two of these meetings, the Trial Chamber concluded
that Radislav Krstic �was put on notice that
the survival of the Bosnian Muslim
population was in question following the take-over of Srebrenica.�[138]
All three meetings convened by General Mladic were attended by UNPROFOR
leaders and Bosnian civilians leaders selected by UNPROFOR.[139]
At the first of these meetings, at which Krstic was not present, Colonel Karremans
of Dutch-bat sought assurances from
General Mladic that the Bosnian Muslim
population of Srebrenica, together with Dutch-bat personnel, would be allowed
to
withdraw from the area. General Mladic stated that the Bosnian Muslim civilian
population was not the target of his actions,
and he asked UNPROFOR if they
could provide buses for the transportation of the civilian population.[140]
It was at the second meeting, at which Krstic was present, that the plan to
transport the civilian population crystallised.[141]
The most that Radislav Krstic�s presence at these meetings established
is his knowledge about General Mladic�s decisions to
transfer the population
from Potocari to Muslim-held territory on buses, and to screen the male members
of this population
prior to transportation for war criminals. As the Trial
Chamber acknowledged, the decision to screen was neither criminal nor
unreasonable.
The Bratunac Brigade had drawn up a list of over 350 suspected war criminals
thought to be in the Srebrenica
area.[142]
Although General Mladic also announced that the survival of the population
depended upon the complete surrender of the
ABiH, it is unlikely that General
Mladic would be disclosing his genocidal intent in the presence of UNPROFOR
leaders and
foreign media, or that those present at the meeting, including�Krstic,
would have interpreted his comments in that light. There
was no evidence to
suggest that at this time Radislav Krstic knew about the intent on the part
of General Mladic to execute
the Bosnian Muslim civilians who were to be transferred.
There was, however, evidence to suggest that�Krstic was aware of the intention
of the members of the Main Staff to take total
control of Srebrenica and make
the situation unbearable for the Bosnian Muslims in Srebrenica, both military
and civilian.
In March 1995, the President of Republika Srpska, Radovan Karadzic,
in reaction to the pressure of the international community
to end the war
and create a peace agreement, issued a directive to the VRS, �Directive 7�
setting out the long-term strategy
of the VRS. Directive 7 specified that
the VRS was to �complete the physical separation of Srebrenica from Zepa as
soon
as possible, preventing even communication between individuals in the
two enclaves. By planned and well-thought out combat operations,
create an
unbearable situation of total insecurity with no hope of further survival
or life for the inhabitants of Srebrenica.�
Part of the plan included the blocking of aid convoys. The Directive declared
that
the relevant State and military organs responsible for
the work of UNPROFOR and humanitarian organisations shall, through
planned
and unobtrusively restrictive issuing of permits, reduce and limit the
logistics support of UNPROFOR to
the enclaves and the supply of material
resources to the Muslim population, making them dependent on our good
will
while at the same time avoiding the condemnation of the international
community and international public opinion.
On 31 March 1995, the VRS Main Staff issued Directive 7.1. This Directive,
signed by General Mladic, sought to implement Directive
7 and directed the
Drina Corps to conduct �active combat operations� around the enclaves.�
Directives 7 and 7.1 are insufficiently clear to establish that there was
a genocidal intent on the part of the members of the
Main Staff who issued
them. Indeed, the Trial Chamber did not even find that those who issued Directive
7 and 7.1 had genocidal
intent, concluding instead that the genocidal plan
crystallised at a later stage. At most, Krstic�s knowledge of these Directives
alerted him to the military plan to take over Srebrenica and Zepa, and to
create conditions that would lead to the total
defeat of the Bosnian Muslim
military forces in the area, without whose protection the civilian population
would be compelled
to leave the area. It also alerted Radislav�Krstic to the
intention of the Main Staff to obstruct humanitarian aid to the civilians
of Srebrenica so that their conditions would become unbearable and further
motivate them to leave the area.
It is reasonable to infer that the meetings at Hotel Fontana were a further
step in the implementation of the goals of the Directive.
At each of those
meetings, General Mladic called for the total surrender of the Bosnian Military
forces in the area. In
the two meetings at which Krstic was present, General
Mladic's primary concern was securing the surrender of the Bosnian military
forces in the area. In the second meeting, General Mladic said that the population
had to choose whether to stay or whether
to go, and he demanded that all ABiH
troops in the area surrender their weapons, and emphasised that the survival
of the
civilian population in the enclave was linked to the surrender of the
ABiH troops.[143] At the third meeting,
he again made it clear that the survival of the civilian population in the
area was conditional upon
the capitulation of the ABiH forces.[144]
He said �you can either survive or disappear � For your survival, I request:
that all your armed men who attacked and committed
crimes � and many did �
against our people, hand over their weapons to the Army of the Republika Srpska
� on handing over
weapons you may � choose to stay in the territory � or,
if it suits you, go where you want. The wish of every individual will
be observed,
no matter how many of you there are.�[145]
To secure the surrender of the ABiH forces General Mladic was willing to threaten
severe repercussions for the civilian
population that chose to remain in the
area but was also willing to facilitate their removal. As already stated,
however,
the public nature of the meeting at which these threats were made,
and particularly, the presence of members of the international
community,
make it difficult to conclude that General Mladic was in fact publicly stating
his genocidal intent.
(b) The evidence of Momir Nikolic and Miroslav
Deronjic
The Prosecution argues, as it did at trial, that Radislav Krstic knew at
the time of his attendance at the third meeting at
the Hotel Fontana of the
genocidal intent of the Serb leadership. The Prosecution relies upon the additional
evidence given
by Momir Nikolic in the Blagojevic trial, and admitted
in this Appeal, and upon the evidence of Miroslav Deronjic, who was summoned
by the Appeals Chamber
on its own initiative.
Momir Nikolic testified that on the morning of the 12 July 1995, and prior
to the third meeting at the Fontana Hotel, he met
with Lieutenant Colonel�Kosotic
and Colonel Popovic, and was told by Colonel Popovic that on that day the
women and children
would be evacuated but the men would be temporarily detained
and then killed. The Prosecution argues that this evidence shows
that a firm
plan to kill the Muslim men of Srebrenica was formed as early as 12�July 1995.[146]
While this evidence may support the existence of such a plan on the part of
the Main Staff of the VRS, it does not go to
Krstic�s knowledge of or participation
in such a plan.
The evidence given by Miroslav�Deronjic does not help the Prosecution either.
Although Mr. Deronjic gave some evidence of an
intention on the part of the
Serb leadership prior to 13 July 1995 to kill the Bosnian Muslim civilians
in Srebrenica should
military operations in that region be successful, he
gave no evidence linking Radislav Krstic to a genocidal plan or indicating
that Krstic was aware of that intention on the part of the Bosnian Serb leadership.[147]
As such, the evidence of neither additional witness supports the Prosecution�s
argument. Further, the Appeals Chamber is
hesitant to base any decision on
Mr. Deronjic�s testimony without having corroborating evidence. The discrepancies
in the
evidence given by Mr. Deronjic and the ambiguities surrounding some
of the statements he made, particularly with respect to
his sighting of Krstic
at Hotel Fontana, caution the Appeals Chamber against relying on his evidence
alone.
(c) The Trial Chamber�s findings regarding Radislav
Krstic�s presence around Potocari and the removal of the men from the buses
at Tisca
The Trial Chamber rejected the Prosecution�s argument that Krstic�s assistance
in organising the transportation of the women,
children and elderly from Potocari
were acts carried out pursuant to a joint criminal enterprise to commit genocide.
The
Trial Chamber did however rely on the presence of Radislav Krstic in and
around the Potocari compound for between one and two
hours in the afternoon
of 12 July, at which time he was seen conferring with other high ranking military
officers, including
General Mladic, as evidence of his growing knowledge that
genocide would be committed.[148] The
Trial Chamber found that as a result of his presence there, Krstic �must have
known of the appalling conditions facing
the Bosnian Muslim refugees and the
general mistreatment inflicted upon them by VRS soldiers on that day.�[149]
The Trial Chamber further found that, based on Krstic�s presence at the White
House, he was aware that the segregated men
were being detained in terrible
conditions and were not being treated in accordance with accepted practice
for war crime
screening.[150] The Trial
Chamber concluded that he must have realised, as did all other witnesses present
around the compound, that the
fate of these men was terribly uncertain but
that he made no effort to clarify this with General Mladic or anyone else.[151]
However, the Trial Chamber also concluded that it was not until 13�July
1995 that Dutch-bat troops witnessed definite signs
that Bosnian Serbs were
executing some of the Bosnian Muslim men who had been separated; that it was
not until all the
Bosnian Muslim civilians were removed from Potocari that
the personal belongings of the separated men were destroyed; and that
Dutch-bat
troops were certain that the story of screening for war criminals was not
true.[152] The Trial Chamber was unable
to conclude that any Drina Corps personnel were still in the compound at that
time, and there
was no evidence that Krstic was either aware of the shootings
at the White House, or the destruction of the personal belongings
of the separated
men.[153]
The Trial Chamber also found that Radislav Krstic must have known that
men who managed to board the buses with the women, children
and elderly were
being removed from them at Tisca.[154]
Evidence of an intercept of 12 July 1995 established that Krstic ordered the
Drina Corps to secure the road from Vlasenica
toward Tuzla. The Trial Chamber
concluded that this fact gave rise to the inference that he must have known
men were being
taken off the buses at Tisca. It further found that the Chief
of Staff of the Milici Brigade, and troops from his unit, were
present at
the Tisca screening site upon the orders of the Drina Corps Command.[155]
On the basis of this evidence the Trial Chamber concluded that it was clear
that Krstic must have known that men were being
separated at Tisca and taken
to detention sites. Notably, however, the Trial Chamber did not establish
at this point that
Radislav Krstic knew the prisoners were to be executed.[156]
It should be clear by now that - despite the Trial Chamber�s assertion
that if General Mladic knew about the killings, then
Krstic must have also
known - the Trial Chamber did not actually establish, from Krstic�s contacts
with General Mladic
during the relevant period, that Radislav Krstic in fact
learned of the intention to execute the Bosnian Muslims as a result
of those
contacts. The Trial Chamber�s assertion was without a proper evidentiary basis.
Without having established that
Krstic knew of that intention on the part
of General Mladic, no reasonable Trial Chamber could have made the further
inference
that Krstic shared that intention. Although the Trial Chamber placed
relatively little weight upon the finding in terms of determining
the criminal
liability of Radislav Krstic, this erroneous finding of the Trial Chamber
casts some doubt upon its overall
conclusion that Radislav Krstic shared the
genocidal intent.
(d) The Trial Chamber�s reliance on various other
facts
The Trial Chamber based its finding as to Krstic�s intent on a number of
other facts as well. The men separated at Potocari
were transported to Bratunac,
along with other Bosnian Muslim prisoners captured in the wooded terrain.
The Trial Chamber
found that the Bratunac Brigade would have informed the
Drina Corps Command about the arrival of the prisoners,[157]
and that the Drina Corps Command must have known that the prisoners were not
being transferred to regular prisoner of war
facilities, but were being detained
in Bratunac without any provision for food and water etc.[158]
From Radislav Krstic�s presence in Potocari and his role in organising the
transportation, the Trial Chamber concluded
that he must known that the men
were being separated from women and children and either detained, or were
being transported
elsewhere.[159]
This evidence does not by itself establish that Krstic knew about the joint
criminal enterprise to destroy the Bosnian Muslim
population. As the Trial
Chamber itself acknowledged, the separation of the men and their detention
elsewhere may have
been equally consistent with General Mladic�s publicly
stated intention that they be screened for possible war criminals. The
separation
and detention of the men was also consistent with an intention to exchange
the prisoners for the Serbian soldiers
captured by the Bosnian Muslims. The
Trial Chamber heard evidence that such exchanges were frequent during the
military
conflict in the former Yugoslavia and that �a new infusion of Bosnian
Muslim prisoners would have been a potentially useful
bargaining tool for
the Bosnian Serbs in future exchange negotiations.�[160]
Indeed, the decision to execute the Bosnian Muslim civilians was, according
to the Prosecution expert, �unfathomable in
military terms�.[161]
If this decision was so unexpected and irrational, it is surely unreasonable
to expect Radislav Krstic to anticipate such
a course of events on the basis
of observations that are equally (if not more so) consistent with an innocent
outcome.
Krstic�s knowledge of the detention of prisoners in Bratunac is therefore
not sufficient to support an inference of actual knowledge
about the execution
plan, and by extension, an inference of genocidal intent on the part of Krstic.
The Trial Chamber found that because the subordinate brigades continued
to operate under the Command of the Drina Corps, the
command itself, including
Radislav Krstic, must have known of the involvement of these subordinate units
in the executions
as of 14 July 1995.[162]
In support of this conclusion the Trial Chamber relied upon what it described
as direct evidence of Krstic�s knowledge
of and involvement in the executions.[163]
The Trial Chamber found that, although at the time the genocidal plan was
implemented, Radislav Krstic was commanding the
Zepa operation, he was nevertheless
constantly travelling to the Drina Corps forward command post in Vlasenica.
The Trial
Chamber found, moreover, that he was in communication with all of
the officers in his zone of responsibility. The Trial Chamber
acknowledged
that these contacts alone could not support the inference that Krstic was
involved in the executions. These
contacts, in the Trial Chamber�s view, merely
provided additional support to the other evidence of Krstic�s involvement
in the executions.[164]
(i) The Trial Chamber�s reliance upon contacts
with Colonel Beara
First, the Trial Chamber relied heavily upon Radislav Krstic�s contacts
with Colonel Beara, who was closely involved in the
killings,[165]
and in particular the evidence of conversation intercepts of 15�July 1995,
as discussed above. In the first intercept,
Colonel Beara requested General
Zivanovic to send more men, but General Zivanovic refused and referred Colonel
Beara to
Radislav Krstic. Colonel Beara then urgently requested the assistance
of Krstic in the distribution of �3,500 parcels,� telling
him that �Furtula
didn�t carry out the boss� order.� The Trial Chamber concluded that this was
a code term used in military
communications to signify captured Muslim men.
Radislav Krstic suggested that Colonel Beara seek help from other units, but
Colonel Beara replied that these units were not available and that he was
at a loss as to what to do. He told Krstic that
he only needed the men for
a few hours and could return them at the end of the day. Radislav Krstic replied
that he would
see what he could do.[166]
The Trial Chamber found that both Zivanovic and Radislav Krstic knew about
the prior �boss�s order� to send 30 men with Boban
In�ic three days earlier,
on 13 July 1995. The Trial Chamber stated further that the commencement of
the executions on
13 July 1995 supported an inference that these 30 men, who
did not arrive, were to assist in the executions.[167]
The Trial Chamber found that Colonel Beara�s statement that he only needed
the men for a few hours indicated a short and
discreet assignment rather than
a deployment for combat.[168] It stated
that the intercept strongly implied that when the MUP troops declined to carry
out the killings, Krstic agreed
to help and arranged for Bratunac Brigade
members to assist in the killings at Branjevo Farm and the Pilica Dom the
following
day.[169] The Trial Chamber
concluded that Radislav Krstic�s initial reluctance to assist was consistent
with the fact that by this
time units from the Zvornik Brigade had been withdrawn
from Zepa and sent back to address the urgent situation in their zone
of responsibility.[170]
As such, the Trial Chamber relied upon this intercept as establishing that
Krstic knew about the executions, and with that
knowledge he undertook to
assist Colonel Beara by supplying the additional men needed to carry out those
executions.[171]
The Trial Chamber�s reliance upon Radislav Krstic�s knowledge from this
intercept as establishing intent on the part of Krstic
to participate in a
genocidal plan is unreasonable. Krstic�s statement to Colonel Beara (�You
guys fucked me up so much�),
coupled with his next comment, �Fuck it, now
I�ll be the one to blame,� [172] shows
at most that Radislav Krstic was aware that killings were occurring.[173]
The conversation, moreover, easily lends itself to the interpretation that,
prior to the conversation, Krstic had no knowledge
that Colonel Beara was
involved in the execution of Muslims, and was angry with Colonel Beara that
responsibility would
now be attached to him. Even if it is accepted that the
conversation between Radislav Krstic and Colonel Beara related to the
execution
of Muslim prisoners, it only establishes knowledge on the part of Krstic that
genocide was being committed. It
cannot establish intent to commit genocide.
Likewise, the fact that Krstic suggested that men be taken from his subordinates
may support a finding of knowledge that executions of Bosnian Muslims were
taking place, but it cannot establish that Radislav
Krstic shared the intent
to commit genocide. At most, a reasonable trier of fact could conclude that
from this time, Krstic
had knowledge of the genocidal intent of some members
of the VRS Main Staff.
The Trial Chamber pointed to the evidence that Colonel Beara was amongst
the Command Staff at Zepa along with General Mladic,
and was involved in negotiations
at Zepa from mid-July 1995, and to evidence of Colonel Beara seeing Radislav
Krstic at
an UNPROFOR checkpoint in Zepa during the Zepa operation.[174]
The evidence of such other contacts Krstic had with Colonel Beara during the
relevant period is also insufficient to support
an inference of genocidal
intent on the part of Radislav Krstic.
The Trial Chamber referred to the fact that the Defence denied that he
had had this conversation with Colonel Beara. It found
that at the time the
conversation took place on 15 July 1995, Radislav Krstic knew that the executions
were occurring,
and that he undertook to assist Colonel Beara in obtaining
the necessary personnel to carry them out.[175]
On Appeal, the Defence accepted that the conversation had occurred, but denied
that Krstic had acted on Colonel Beara's
request. This inconsistency in Krstic's
testimony does not, however, establish that Krstic lied in order to hide the
fact
that he shared the genocidal intent of some members of the Main Staff.
As a general principle, where an accused is shown to
have lied about a fact
during a criminal trial, an inference that he lied to obfuscate his own guilt
may only be drawn
where all other reasonable possible explanations for that
lie have been excluded. The most that can be said about the Defence's
inconsistent
position is that Radislav Krstic knew, from his conversation with Colonel
Beara, that killings were being
carried out with genocidal intent. It cannot
be concluded, as a result of Krstic�s inconsistencies, that he subscribed
to that genocidal intent. His lie is explicable as a desire to avoid just
such an adverse inference being drawn to his detriment,
and it cannot support
the inference that he shared the genocidal intent of some members of the Main
Staff.
(ii) The Trial Chamber�s reliance upon contacts
with Colonel Pandurevic
Secondly, the Trial Chamber relied on evidence of Radislav Krstic�s close
contact during the relevant period with the commander
of the Zvornik Brigade,
Colonel Vinko Pandurevic. The Trial Chamber found that Colonel Pandurevic
was ordered back by Krstic
to his area of responsibility on 14 July 1995,
(following requests made to Radislav Krstic by General Zivanovic and Major
Obrenovic)[176] in light of the dual problems
of Muslim combatants and prisoners.[177]
Once Colonel Pandurevic was back in the Zvornik Brigade area of responsibility,
he sent an interim combat report to the
Commander of the Drina Corps on 15�July
1995 concerning the threat posed to the Zvornik Brigade by the Bosnian Muslim
column.
Colonel Pandurevic stated that �(a(n additional burden for us is the
large numbers of prisoners distributed throughout schools
in the brigade area
as well as obligations of security and restoration of the terrain�This command
cannot take care of
these problems any longer, as it has neither the material
nor other resources. If no one takes on this responsibility I will
be forced
to let them go.�[178]
At the time Colonel Pandurevic sent this report the prisoners held at Orahovac
and Petkovci Dam had already been executed, though
the prisoners in Pilica
and those who were at Kozluk were still alive. The Trial Chamber found that
the report made clear
that Colonel Pandurevic knew about the prisoner situation
in his area of responsibility and that he was concerned about the
diversion
of resources from combat with the 28th Division of the ABiH in order to meet
the situation caused by prisoners
in his zone.[179]
The Trial Chamber concluded that at the time he wrote the report, Colonel
Pandurevic knew about the ongoing execution of
Bosnian Muslim prisoners in
his zone of responsibility.
The Trial Chamber further found that Colonel Pandurevic�s knowledge of
the execution was consistent with his complaint that
vital resources were
being diverted to deal with prisoners. On 13 and 14 July 1995, Zvornik Brigade
resources had been
used to locate detention sites for the prisoners, and on
14 and 15 July 1995, Zvornik Brigade resources had been used to assist
with
the executions at Orahavoc and Petkovci Dam.[180]
As Commander of the Zvornik Brigade, Colonel Pandurevic would have been informed
about the deployment of resources for
this purpose given the impact that this
diversion was having on the ability of the Zvornik Brigade to respond to the
military
threat posed by the Bosnian Muslim column. The Trial Chamber accepted
that the interim combat report was written on the assumption
that the Drina
Corps Command, and Radislav Krstic as its Commander, knew about both the prisoner
situation and the executions
being carried out in the Zvornik Brigade�s area
of responsibility.[181] It found that
until that time, the Zvornik Brigade had been assigned tasks relating to the
prisoners and that Colonel Pandurevic
�warned his Command that he would not
tolerate the situation any longer�.[182]
On 15 July 1995, another report was received by Radislav Krstic from Colonel
Milanovic, who believed that Krstic knew about
Colonel Pandurevic�s situation.[183]
Further, an intercepted conversation on 16�July 1995 showed that Krstic was
taking steps to remain fully informed of the
developing situation of the Zvornik
Brigade.[184] On 17 July 1995 an intercepted
conversation between Krstic and the Duty Officer, Captain Trbic, was recorded
in which Captain
Trbic informed Radislav Krstic that there were no further
problems pursuant to the 16�July 1995 Combat Report, and that everything
was
under control. In that intercept Krstic was heard to ask �have you killed
the Turks up there ?� This was conceded by
the Prosecution to be a reference
to combat activities and not the Bosnian Muslim prisoners.[185]
In an intercepted conversation of 19 July 1995, Colonel Cerovic stated that
he had presented an interim report to Radislav
Krstic. The Trial Chamber relied
on this evidence as further establishing that Krstic knew what was happening
in Zvornik
and was kept fully informed about the executions.[186]
The evidence before the Trial Chamber of military reports being sent to
Radislav Krstic by Colonel Pandurevic does establish
that even while Krstic
was away and engaged in military operations in the area of Zepa, he was monitoring
the situation
within the zone of responsibility of the Zvornik Brigade. The
reports do not establish, however, that Radislav Krstic was being
informed
about the executions or other mishandling of prisoners. In fact, one of the
reports states, to the contrary, that
both the military and the MUP forces
will �protect the population and property �. The more logical inference is
that he
was receiving reports about the combat activities with the column.
Even accepting that Krstic was aware, on the basis of these
reports, that
executions were being carried out in the Zvornik Brigade�s area of responsibility,
this knowledge cannot
support an inference of genocidal intent on his part.
There was no evidence that Radislav Krstic was in fact directing those
executions
or supervising their commission by the Zvornik Brigade.
During the trial the military expert for the Defence, Mr. Radinovic, conceded
that the proper interpretation of a further interim
combat report sent by
Colonel Pandurevic on July 1995 was that Colonel Pandurevic was expressing
strong discontent about
the crimes that had occurred in his area of responsibility.[187]
While the Trial Chamber relied upon this concession as further evidence of
knowledge of the executions on the part of Radislav
Krstic, the fact that
his subordinate was expressing discontent about the executions in reports
to Krstic speaks against
rather than in favour of a genocidal intent on the
part of Radislav Krstic. Again, the most this report establishes is that
Krstic
knew that those executions had taken place.
(iii) The Trial Chamber�s reliance upon contacts
with Colonel Popovic
Next, the Trial Chamber relied on the evidence of Radislav Krstic�s frequent
contacts with Colonel Popovic during the relevant
period.[188]
On 16�July 1995, an intercepted conversation recorded a request being made
to the Drina Corps Command for fuel on behalf
of Colonel Popovic, who was
in the zone of the Zvornik Brigade. The Zvornik Brigade Duty Officer making
the request stated
that Colonel Popovic would not continue the work he was
doing unless the fuel requested was supplied, and later in the conversation,
stated that �the bus loaded with oil is to go to Pilica village.� Records
for 16�July 1995 confirmed that 500 litres of
fuel were dispatched to Colonel
Popovic, and the Drina Corps Command is noted as the recipient.[189]
The Trial Chamber relied upon this evidence to establish that Krstic, as the
Commander of the Drina Corps, must have known
that the fuel had been allocated
to Colonel Popovic and that the fuel was being used to assist Colonel Popovic
in the executions.[190] Again, the only
inference this evidence is capable of sustaining is one of knowledge on the
part of Krstic, not of shared
genocidal intent.
The Trial Chamber also relied upon an intercept of 17�July 1995 as establishing
that Colonel Popovic was reporting specifically
to Radislav Krstic about the
executions. On 17�July 1995 Krstic called Major�Golic from the Intelligence
sector of the
Drina�Corps looking for Colonel Popovic. He was informed that
Colonel Popovic was still in Zvornik but would be back in the
afternoon. Radislav
Krstic then instructed Major�Golic to locate Colonel Popovic and tell him
to �call the Forward Command
Post immediately.� A few hours later, Colonel
Popovic was overheard in a conversation with an individual he addressed as
�boss� in which he stated that the job was done and �the grade was an A.�[191]
The Trial Chamber found that although Krstic was not identified in the
conversation, given that at the time of Colonel Popovic�s
call the executions
had been completed, and that some hours earlier Radislav Krstic had been trying
to contact Colonel
Popovic, and given Colonel Popovic�s reference to �boss,�
there was nevertheless a strong inference that Colonel Popovic was
reporting
to Krstic. While the Trial Chamber�s finding that Colonel Popovic was reporting
to Radislav Krstic on the murder
operation is plausible, no reasonable trier
of fact could have concluded that this was the only reasonable inference that
could be drawn from the evidence. The reason why Krstic wanted Colonel Popovic
to call him was never identified, and the
inference that he wished to receive
a report about the killing operation is therefore conjecture. It is also far
from certain
that the individual to whom Colonel Popovic was reporting was
Krstic. The call was made some hours after Radislav Krstic attempted
to speak
with Colonel Popovic. In the preceding intercept, the Trial Chamber found
a reference to �boss� to be a reference
to Colonel Pandurevic, and a reference
to �General� to be a reference to Radislav Krstic.[192]
This finding was made in circumstances identical to the intercept at issue
here, namely where the caller was Colonel Popovic.
Given these factors, the
inference drawn from this intercept by the Trial Chamber was not the only
one a reasonable trier
of fact could have made.
Other contacts with Colonel Popovic referred to by the Trial Chamber are
to Colonel Popovic�s presence with Radislav Krstic
and other VRS officers
who walked through the streets of Srebrenica on the afternoon of 11 July,
Colonel Popovic�s attendance
at the Hotel Fontana meeting on the morning of
12 July 1995, his presence in Potocari on 12 July 1995 and his presence behind
Krstic while he gave his interview in Potocari on 12 July 1995. All that this
evidence establishes is the fact that these
contacts occurred at these times.
(iv) The Trial Chamber�s reliance upon contacts
with Colonel Borovcanin
Finally, the Trial Chamber relied upon the contacts Radislav Krstic had
with Colonel Borovcanin from the MUP during the relevant
period.[193]
In an intercepted conversation of 13 July 1995 Krstic spoke to Colonel Borovcanin.
In response to Radislav Krstic�s inquiry
as to how things were going, Colonel
Borovcanin informed him that things were �going well.� Krstic then said, �Don�t
tell
me that you have any problems.� Colonel Borovcanin answered, �I don�t,
I don�t.�[194] The Trial Chamber relied
upon this conversation to show that Radislav Krstic must have known, that
by the evening of 13�July,
there were several thousand Bosnian Muslim men
being held prisoner in the zone of responsibility of the Drina Corps and that
by the evening of 13�July, the Drina Corps must have been aware that the executions
had taken place. [195]
The Prosecution asks the Appeals Chamber to consider the intercept of 13�July
1995 in light of the additional evidence given
by Mr. Deronjic and Colonel
Obrenovi c. According to Mr. Deronjic, Colonel Borovcanin had admitted that
his men had carried
out the Kravica mass execution in retaliation for the
killing of two Serb policemen.[196] This
evidence was corroborated by Colonel Obrenovic�s evidence that Colonel Borovcanin
told him that Borovcanin�s unit
had blockaded the road from Konjevic Polje
to Kravica, that it experienced a lot of fighting and casualties, and had
taken
quite a few Muslim prisoners.[197]
The Prosecution argues that this evidence establishes that Colonel Borovcanin�s
troops had committed a mass execution on
that day and that Colonel Borovcanin
was reporting to Krstic the results. According to the Prosecution, this was
yet another
piece of evidence showing that Radislav Krstic knew about and
agreed wholeheartedly with the murder operation, and was in fact
monitoring
the MUP forces.
The intercepted conversation between Colonel Borovcanin and Radislav Krstic
is too oblique to support an inference that the
conversation was a report
by Colonel Borovcanin about a successfully completed execution of Muslims
at the Kravica Farm
on 13�July. Moreover, Mr. Deronjic�s evidence was that
the execution at the Kravica Farm was not planned, but was instead a
spontaneous
reprisal following a clash between the Muslim prisoners and the guards.[198]
If so, then the initiative for the massacre could have resided with the camp
authorities rather than with the higher military
commanders such as Krstic.
This evidence, therefore, does not support an inference of genocidal intent
on the part of Krstic.
(v) Additional Evidence from Captain Nikolic
The Prosecution also relies upon the additional evidence presented during
the Appeals hearing by Captain Momir Nikolic about
a burial operation on 12
July 1995. Captain Nikolic�s evidence was that his troops were involved in
a reburial operation,
and that he informed his Commander, Colonel Blagojevic,
about everything that was to be done in relation to the operation. Captain
Nikolic also informed the Commander of the military police, Mirko Jankovic,
because the military police had a role to play
in that burial operation.[199]
This evidence lends no support to the Prosecution�s argument. The earliest
evidence of an extermination of Muslim prisoners
appears to be the execution
at the Kravica Farm on 13 July 1995. The events described by Captain Nikolic
occurred on 12�July
1995. It is, moreover, not clear who the individuals to
be reburied were. In any event, even if there is a connection between
the
reburial operation and the murders at issue in this case, there is no reference
in Captain Nikolic�s testimony to Radislav
Krstic, nor is there any reference
elsewhere in the record to Colonel Blagojevic informing Krstic about this
particular
reburial operation.
In conclusion, Radislav Krstic�s contacts with those who appeared to be
the main participants in the executions establish, at
most, that Krstic was
aware that those executions were taking place. Radislav Krstic�s knowledge
of those executions is
insufficient to support an inference that he shared
the intent to commit genocide.
(vi) The Trial Chamber�s reliance upon evidence
of the use of Drina Corps resources
The Trial Chamber also relied upon evidence that Drina Corps personnel
and resources were used in carrying out the executions.
The Trial Chamber
rejected the Prosecution�s argument that the Drina Corps participated in the
executions at Jadar River
and Cerska Valley.[200]
While the Trial Chamber did not establish direct participation by the Drina
Corps in the executions at the Kravica Warehouse,
it concluded that the Drina
Corps Command must have been aware that the buses used to transport the women,
children and
elderly had been diverted from that purpose to transfer the prisoners
to the Kravica warehouse. Furthermore, based on the close
proximity of the
Bratunac Brigade to the executions and burial sites, and the scale of the
executions, the Trial Chamber
concluded that the Drina Corps would have known
that those executions were being carried out.[201]
The Trial Chamber found that substantial evidence linked the Zvornik Brigade
to the executions at Orahovac.[202] First,
Orahovac was located within the zone of responsibility of the 4th Battalion
of the Zvornik brigade. Second, a vehicle
belonging to the Zvornik Brigade
had visited the area on 13 and 14 July 1995, and the vehicle records established
that
two Zvornik military police officers had been assigned this vehicle.
Third, Zvornik Brigade records established that a detachment
of military police
from the Zvornik Brigade was dispatched to Orahovac on the evening of 13�July
1995. Fourth, a survivor
of the executions testified that he recognised the
voice of a former colleague, Gojko Simic, among the executioners. Gojko Simic
was established as being the Commander of the Heavy Weapons Platoon of the
4th Infantry Battalion of the 1st Zvornik Infantry
Brigade. Fifth, the records
of the Zvornik Brigade�s Engineer Company recorded vehicles, excavators, loaders
and trucks,
as well as fuel being used in relation to Orahovac from 14 to
16 July 1995 inclusive.[203]
On the basis of this evidence, the Trial Chamber concluded that the Zvornik
Brigade of the Drina Corps participated in the executions
on 14�July 1995.
The Trial Chamber found that members of the Zvornik Brigade military police
were present in the area prior
to the executions, �presumably for such purposes
as guarding the prisoners and then facilitating their transportation to the
execution fields.� It also found that personnel from the 4th Battalion of
the Zvornik Brigade were present at Orahovac
during the executions and assisted
in their commission. Finally, machinery and equipment belonging to the Engineers
Company
of the Zvornik Brigade was used for tasks related to the burial of
the victims between 14 and 16�July 1995.[204]
With respect to the executions at the Petkovci Dam, the Trial Chamber found
that Vehicle and Daily Order Records of the Zvornik
Brigade established that
drivers and trucks from the 6th Infantry Battalion of the Zvornik Brigade
were used to transport
the prisoners from Petkovci School to the detention
site at Petkovci Dam on 15 July, and that the Zvornik Brigade Engineer Company
was assigned to work with earthmoving equipment to assist in the burial of
the victims.[205]
The Trial Chamber also relied on the evidence linking the Drina Corps to
the executions at the Branjevo Farm and Pilica Dom.
The Appeals Chamber has
already determined that the Trial Chamber�s conclusion that Krstic deployed
troops from the Bratunac
Brigade to assist in the executions at Branjevo Military
Farm and Pilica Dom was not a finding that a reasonable trier of fact
would
have made. This conclusion, however, leaves undisturbed the Trial Chamber�s
finding that Drina Corps military police
escorted the Bosnian Muslim civilians
on the buses that had earlier been procured to transport the women, children
and
elderly to the execution site at Branjevo Military Farm, and that Zvornik
Brigade equipment was used for activities related
to the burial of the victims.
Also undisturbed is the finding of the Trial Chamber that Colonel Popovic
was involved in
procuring fuel from the Drina Corps Command to transport the
Bosnian Muslim prisoners to the execution sites.[206]
Further, the Bratunac Brigade Military Police Platoon log for 16�July 1995
recorded that �one police patrol remained in
Pilica to secure and watch over
the Bosnian Muslims�. The Trial Chamber found that as there was no combat
in Pilica, this
patrol must have been guarding the Bosnian Muslim prisoners.[207]
With respect to the executions at Kozluk and Nezuk, the Trial Chamber found
that records from the Zvornik Brigade established
that its excavators and
bulldozers had operated in the Kozluk area from 16 July 1995 and that this
equipment was used for
work related to the burial of the victims executed
there.[208] The Trial Chamber further
found that units of the 16th Krajina Brigade, operating under the command
of the Zvornik Brigade,
participated in the execution at Nezuk of 11 to 13
Bosnian Muslims on 19�July 1995.[209]
Finally, while the Trial Chamber found the evidence to be insufficient
to establish the participation of the Drina Corps in
the reburial of bodies
from primary to secondary gravesites during the Autumn of 1995, it was satisfied,
given the scale
of the operation carried out within the Drina Corps zone of
responsibility, that the Drina Corps must have at least known that
this activity
was occurring.[210]
The Trial Chamber concluded that, given that the subordinate Brigades continued
to operate under the Command of the Drina Corps,
the Command itself, including
Radislav Krstic as the Commander, must have known of their involvement in
the executions
as of 14 July 1995.[211]
The Trial Chamber found that Krstic knew that Drina Corps personnel and resources
were being used to assist in those executions
yet took no steps to punish
his subordinates for that participation. [212]
As the Trial Chamber put it, �there can be no doubt that, from the point he
learned of the widespread and systematic killings
and became clearly involved
in their perpetration, he shared the genocidal intent to kill the men. This
cannot be gainsaid
given his informed participation in the executions through
the use of Drina Corps assets.�[213] The
Trial Chamber inferred the genocidal intent of the accused from his knowledge
of the executions and his knowledge of
the use of personnel and resources
under his command to assist in those executions. However, knowledge on the
part of Radislav
Krstic, without more, is insufficient to support the further
inference of genocidal intent on his part.
Further, at the Appeals hearing the Prosecution emphasised - as evidence
of Krstic�s genocidal intent - the Trial Chamber�s
findings of incidents in
which he was heard to use derogatory language in relation to the Bosnian Muslims.
The Trial Chamber
accepted that �this type of charged language is commonplace
amongst military personnel during war.�[214]
The Appeals Chamber agrees with this assessment and finds that no weight can
be placed upon Radislav Krstic�s use of derogatory
language in establishing
his genocidal intent.
(e) The Trial Chamber�s other findings militating
against a finding of genocidal intent
The Trial Chamber also made numerous findings that militate against a conclusion
that Radislav Krstic had genocidal intent.
It found that although Krstic was
not a reluctant participant in the forcible transfer of the Bosnian Muslim
population,
he did appear concerned to ensure that the operation was conducted
in an orderly fashion. He simply wanted the civilian population
out of the
area and he had no interest in mistreating them along the way. The Trial Chamber
acknowledged, moreover, that
the evidence could not establish that �Radislav
Krstic himself ever envisaged that the chosen method of removing the Bosnian
Muslims from the enclave would be to systematically execute part of the civilian
population� and that he �appeared as a
reserved and serious career officer
who is unlikely to have ever instigated a plan such as the one devised for
the mass
execution of Bosnian Muslim men, following the take-over of Srebrenica
in July 1995.�[215] The Trial Chamber
found that �left to his own devices, it seems doubtful that Krsti c would
have been associated with such
a plan at all.�[216]
The Trial Chamber also found that Radislav Krstic made efforts to ensure
the safety of the Bosnian Muslim civilians transported
out of Potocari. In
an intercept of 12 July 1995, he was heard ordering that no harm must come
to the civilians and, in
the interview he gave in Potocari on 12 July 1995,
guaranteed their safe transportation out.[217]
The Trial Chamber found that Krstic showed similar concerns for the Bosnian
Muslim civilians during the Zepa campaign.
In an intercept of 25 July 1995
he was heard to order that a convoy of civilians bound for Kladanj be treated
in a civilised
manner, �so that nothing of the kind of problem we had before
happens.�[218] The Trial Chamber concluded
that while this intercept suggested that Radislav Krstic was anxious for the
transfer to proceed
properly, it also indicated that he was aware of problems
with earlier transfers.[219] The conclusion
that he was �aware of problems with earlier transfers,� and now took steps
to avoid mistreatment, goes against
the Trial Chamber�s conclusion that Krstic
had been a willing participant in a joint criminal enterprise of genocide.
Finally, the Trial Chamber referred to the evidence of a Defence witness
that on 13�July 1995 he had a conversation about the
Bosnian Muslim column
with Krstic, who had expressed the view that the VRS should allow the column
to pass so that the
situation could be �ended as it should.� The Trial Chamber
relied on the evidence as indicating awareness on the part of Radislav
Krstic
that attempts were being made to capture the men from the column. The evidence,
however, indicates that Krstic harboured
no genocidal intent.[220]
His own particular intent was directed to a forcible displacement. Some other
members of the VRS Main Staff harboured the
same intent to carry out forcible
displacement, but viewed this displacement as a step in the accomplishment
of their genocidal
objective. It would be erroneous, however, to link Krstic�s
specific intent to carry out forcible displacement with the same
intent possessed
by other members of the Main Staff, to whom the forcible displacement was
a means of advancing the genocidal
plan.
(f) The Appeals Chamber�s preliminary conclusion
regarding the Trial Chamber�s finding of Radislav Krstic�s genocidal intent
As has been demonstrated, all that the evidence can establish is that Krstic
was aware of the intent to commit genocide on the
part of some members of
the VRS Main Staff, and with that knowledge, he did nothing to prevent the
use of Drina Corps personnel
and resources to facilitate those killings. This
knowledge on his part alone cannot support an inference of genocidal intent.
Genocide is one of the worst crimes known to humankind, and its gravity is
reflected in the stringent requirement of specific
intent. Convictions for
genocide can be entered only where that intent has been unequivocally established.
There was a
demonstrable failure by the Trial Chamber to supply adequate proof
that Radislav Krstic possessed the genocidal intent. Krstic,
therefore, is
not guilty of genocide as a principal perpetrator.
E. The Criminal Responsibility of Radislav Krstic:
Aiding and Abetting Genocide
The issue that arises now is the level of Radislav Krstic�s criminal responsibility
in the circumstances as properly established.
All of the crimes that followed
the fall of Srebrenica occurred in the Drina Corps zone of responsibility.
There was no
evidence that the Drina Corps devised or instigated any of the
atrocities, and the evidence strongly suggested that the criminal
activity
was being directed by some members of the VRS Main Staff under the direction
of General Mladic.[221] At the time the
executions commenced Krstic was engaged in preparing for combat activities
at Zepa and, from 14 July 1995
onwards, directing the attack itself.[222]
At trial the Defence had argued that, given the involvement of General
Mladic, Radislav Krstic could do nothing to prevail upon
General Mladic and
stop the executions.[223] The Trial Chamber
however found evidence of General Mladic�s orders being challenged by the
Drina Corps Command, and in
particular, evidence of Krstic countering an order
issued by the Main Staff.[224] The Trial
Chamber also found evidence of Radislav Krstic�s continued loyalty to General
Mladic despite his knowledge of
General Mladic�s role in the genocide at Srebrenica.[225]
As has been found above, it was reasonable for the Trial Chamber to conclude
that, at least from 15 July 1995, Radislav Krstic
had knowledge of the genocidal
intent of some of the Members of the VRS Main Staff. Radislav Krstic was aware
that the
Main Staff had insufficient resources of its own to carry out the
executions and that, without the use of Drina Corps resources,
the Main Staff
would not have been able to implement its genocidal plan. �Krstic knew that
by allowing Drina Corps resources
to be used he was making a substantial contribution
to the execution of the Bosnian Muslim prisoners. Although the evidence
suggests
that Radislav Krstic was not a supporter of that plan, as Commander of the
Drina Corps he permitted the Main Staff
to call upon Drina Corps resources
and to employ those resources. The criminal liability of Krstic is therefore
more properly
expressed as that of an aider and abettor to genocide, and not
as that of a perpetrator.[226] This charge
is fairly encompassed by the indictment, which alleged that Radislav Krstic
aided and abetted in the planning,
preparation or execution of genocide against
the Bosnian Muslims in Srebrenica.[227]
Krstic�s responsibility is accurately characterized as aiding and abetting
genocide under Article 7 1 of the Statute, not as
complicity in genocide
under Article 4 3 (e). The charge of complicity was also alleged in the indictment,
as Count 2.[228] The Trial Chamber did
not enter a conviction on this count, concluding that Radislav Krstic�s responsibility
was that of
a principal perpetrator.[229]
As the Trial Chamber observed, there is an overlap between Article 4 3 as
the general provision enumerating punishable
forms of participation in genocide
and Article 7 1 as the general provision for criminal liability which applies
to all
the offences punishable under the Statute, including the offence of
genocide.[230] There is support for a
position that Article 4 3 may be the more specific provision (lex specialis)
in relation to Article 7 1 .[231] There
is, however, also authority indicating that modes of participation enumerated
in Article 7 1 should be read, as
the Tribunal�s Statute directs, into Article
4 3 , and so the proper characterization of such individual�s criminal liability
would be that of aiding and abetting genocide.[232]
The Appeals Chamber concludes that the latter approach is the correct one
in this case. Article 7 1 of the Statute, which allows
liability to attach
to an aider and abettor, expressly applies that mode of liability to any �crime
referred to in articles
2 to 5 of the present Statute,� including the offence
of genocide prohibited by Article 4. Because the Statute must be interpreted
with the utmost respect to the language used by the legislator, the Appeals
Chamber may not conclude that the consequent
overlap between Article 7 1
and Article 4 3 (e) is a result of an inadvertence on the part of the legislator
where another
explanation, consonant with the language used by the Statute,
is possible. In this case, the two provisions can be reconciled,
because the
terms �complicity� and �accomplice� may encompass conduct broader than that
of aiding and abetting.[233] Given the
Statute�s express statement in Article 7 1 that liability for genocide under
Article 4 may attach through the
mode of aiding and abetting, Radislav Krstic�s
responsibility is properly characterized as that of aiding and abetting genocide.[234]
This, however, raises the question of whether, for liability of aiding
and abetting to attach, the individual charged need only
possess knowledge
of the principal perpetrator�s specific genocidal intent, or whether he must
share that intent. The Appeals
Chamber has previously explained, on several
occasions, that an individual who aids and abets a specific intent offense
may be held responsible if he assists the commission of the crime knowing
the intent behind the crime.[235] This
principle applies to the Statute�s prohibition of genocide, which is also
an offence requiring a showing of specific
intent. The conviction for aiding
and abetting genocide upon proof that the defendant knew about the principal
perpetrator�s
genocidal intent is permitted by the Statute and case-law of
the Tribunal.
Many domestic jurisdictions, both common and civil law, take the same approach
with respect to the mens rea for aiding and abetting, and often expressly
apply it to the prohibition of genocide. Under French law, for example, an
aider and abettor need only be aware that he is aiding the principal perpetrator
by his contribution,[236] and this general
requirement is applied to the specific prohibition of the crime of genocide.[237]
German law similarly requires that, in offences mandating a showing of a specific
intent (dolus specialis), an aider and abettor need not possess the
same degree of mens rea as the principal perpetrator, but only to be
aware of the perpetrator�s intent.[238]
This general principle is applied to the prohibition of genocide in Section
6 of the German Code of Crimes Against International
Law.[239]
The criminal law of Switzerland takes the same position, holding that knowledge
of another�s specific intent is sufficient
to convict a defendant for having
aided a crime.[240] Among the common law
jurisdictions, the criminal law of England follows the same approach, specifying
that an aider and
abettor need only have knowledge of the principal perpetrator�s
intent.[241] This general principle again
applies to the prohibition of genocide under the domestic English law.[242]
The English approach to the mens rea requirement in cases of aiding
and abetting has been followed in Canada and Australia,[243]
and in some jurisdictions in the United States.[244]
By contrast, there is authority to suggest that complicity in genocide,
where it prohibits conduct broader than aiding and abetting,
requires proof
that the accomplice had the specific intent to destroy a protected group.
Article 4 of the Statute is most
naturally read to suggest that Article 4 2 �s
requirement that a perpetrator of genocide possess the requisite �intent to
destroy� a protected group applies to all of the prohibited acts enumerated
in Article 4 3 , including complicity in genocide.[245]
There is also evidence that the drafters of the Genocide Convention intended
the charge of complicity in genocide to require
a showing of genocidal intent.
The U.K. delegate in the Sixth Committee of the General Assembly �proposed
adding the word
�deliberate� before �complicity,�� explaining that �it was
important to specify that complicity must be deliberate, because
there existed
some systems where complicity required intent, and others where it did not.
Several delegates (representing
Luxembourg, Egypt, Soviet Union, Yugoslavia(
said that this was unnecessary, because there had never been any doubt that
complicity in genocide must be intentional. The United Kingdom eventually
withdrew its amendment, �since it was understood
that, to be punishable, complicity
in genocide must be deliberate.��[246]
The texts of the Tribunal�s Statute and of the Genocide Convention, combined
with the evidence in the Convention�s travaux pr�paratoires, provide
additional support to the conclusion that the drafters of the Statute opted
for applying the notion of aiding
and abetting to the prohibition of genocide
under Article 4.[247]
The fact that the Trial Chamber did not identify individual members of
the Main Staff of the VRS as the principal participants
in the genocidal enterprise
does not negate the finding that Radislav Krstic was aware of their genocidal
intent. A defendant
may be convicted for having aided and abetted a crime
which requires specific intent even where the principal perpetrators have
not been tried or identified.[248] In
Vasiljevic, the Appeals Chamber found the accused guilty as an aider
and abettor to persecution without having had the alleged principal
perpetrator
on trial and without having identified two other alleged co-perpetrators.[249]
Accordingly, the Trial Chamber�s conviction of Krstic as a participant in
a joint criminal enterprise to commit genocide
is set aside and a conviction
for aiding and abetting genocide is entered instead.[250]
The Appeals Chamber�s examination of Radislav�Krstic�s participation in
the crime of genocide has implications for his criminal
responsibility for
the murders of the Bosnian Muslim civilians under Article�3, violations of
the laws or customs of war,
and for extermination and persecution under Article�5,
all of which arise from the executions of the Bosnian Muslims of Srebrenica
between 13 and 19 July 1995. As the preceding factual examination has established,
there was no evidence that�Krstic ordered
any of these murders, or that he
directly participated in them. All the evidence can establish is that he knew
that those
murders were occurring and that he permitted the Main Staff to
use personnel and resources under his command to facilitate them.
In these
circumstances the criminal responsibility of Radislav� Krstic is that of an
aider and abettor to the murders,
extermination and persecution, and not of
a principal co-perpetrator.
F. Radislav Krstic�s Criminal Responsibility
for the Opportunistic Crimes Committed at Potocari
The Defence also contests the findings of the Trial Chamber in relation
to Krstic�s criminal responsibility for the crimes committed
on 12 and 13
July 1995 at Potocari. The Trial Chamber found that Radislav Krstic was a
participant in a joint criminal
enterprise to forcibly remove the Bosnian
Muslim civilians from Potocari, and so incurred criminal responsibility for
the
murders, beatings and abuses committed there as natural and foreseeable
consequences of that joint criminal enterprise. The
Defence argues that these
crimes were not natural and foreseeable consequences of the ethnic cleansing
campaign, and that
the Trial Chamber�s finding that Krstic was aware of them
is contrary to the presumption of innocence.
According to the Defence, the evidence established that he was at Potocari
on 12 July 1995 for at most two hours. There was
no evidence to support the
conclusion of the Trial Chamber that he had �first-hand knowledge that the
refugees were being
mistreated by VRS or other armed forces,� or that he witnessed
the inhumane conditions of the White House and the killing of
civilians there.
The Defence argues that, to the contrary, the evidence establishes that there
were orders from the military
authorities to treat the civilians humanely.[251]
The Defence refers to an order of 9�July 1995 issued by Mr. Karadzic as Supreme
Commander of the Serb forces, which expressly
provided that the civilian population
was to be treated in accordance with the Geneva Conventions,[252]
the evidence of Drazen Erdemovic that soldiers entering the town of Srebrenica
were explicitly told not to fire at civilians,[253]
the intercept of 12 July 1995 in which Radislav Krstic stated that nothing
must happen to the civilians transported from
Potocari,[254]
and the statements he made in an interview given on 12�July 1995 during the
bussing operation, that the Drina Corps had
guaranteed the safety of the civilian
population.[255]
The ethnic cleansing of the Bosnian Muslim civilians from Srebrenica was
part of the Krivaja 95 operation in which�Krstic was
found to have played
a leading role. Radislav Krstic knew that the shelling of Srebrenica would
force tens of thousands
of Bosnian Muslim civilians into Potocari because
of the UN presence there. He was also well aware that there were inadequate
facilities at Potocari to accommodate the Bosnian civilians.[256]
As such, the Trial Chamber found he was responsible for setting the stage
at Potocari for the crimes that followed.[257]
Further, from his presence at two meetings convened by General�Mladic at the
Hotel Fontana he knew that the Bosnian Muslim
civilians were in fact facing
a humanitarian crisis at Potocari.[258]
There was, therefore, sufficient evidence for the Trial Chamber to be satisfied
that Radislav�Krstic was aware that the
Bosnian Muslim civilians at Potocari
would be subject to other criminal acts.
As the Defence has argued, the Trial Chamber could only establish that
Radislav� Krstic was present in Potocari for one or two
hours in the afternoon
of 12�July. At this time he was involved in overseeing the bussing operation
along with other VRS
Officers, including General�Mladic. However, VRS soldiers
were generally mistreating the Bosnian Muslim civilians, and the situation
facing the Bosnian Muslim civilians at Potocari was so obviously appalling
that the Trial Chamber concluded that these
conditions must have been apparent
to him.[259] Further, while he was found
to have been physically present for only a short period of time, the evidence
established that
he played a principal role in procuring and monitoring the
movement of the buses throughout that day.[260]
It also established that Drina Corp units under his command were heavily involved
in organising and monitoring the transfer
of the Bosnian civilians from Potocari.
While the Trial Chamber found that this aspect of the operation appeared to
be
one of the more disciplined ones, and that it could not be satisfied that
the Drina Corps was directly involved in any of the
opportunistic crimes committed,
the Trial Chamber nevertheless found that the Drina Corp units present at
Potocari were
also in a position to observe the pervasive mistreatment of
the Bosnian Muslim civilians by other Serb forces. While the evidence
established
that on two occasions�Krstic issued orders that the Bosnian Muslim civilians
being transported on the buses
were not to be harmed, there was no evidence
of any attempts being made on the part of Radislav�Krstic to ensure that these
orders were respected.[261] There was
also no evidence of Drina Corps units under his command taking any steps to
ensure that the orders of their Commander
were respected, or to report any
contravention of these orders to him.
In these circumstances, the Defence�s argument that the crimes committed
against the civilian population of Potocari were not
natural and foreseeable
consequences of the joint criminal enterprise to forcibly transfer the Bosnian
civilians is not
convincing. The Trial Chamber reasonably found that the creation
of a humanitarian crisis in Potocari fell within the scope
of the intended
joint criminal enterprise to forcibly transfer the civilian population. The
Trial Chamber expressly found
that, �given the circumstances at the time the
plan was formed, Radislav Krstic must have been aware that an outbreak of
these crimes would be inevitable given the lack of shelter, the density of
the crowds, the vulnerable condition of the refugees,
the presence of many
regular and irregular military and paramilitary units in the area and sheer
lack of sufficient numbers
of UN soldiers to provide protection.�[262]
The Appeals Chamber agrees with this finding. Further, given�Krstic�s role
in causing the humanitarian crisis in Potocari,
the issuance of orders directing
that civilians not be harmed is not sufficient to establish that the crimes
which occurred
were not a natural and foreseeable consequence of the plan
to forcibly transfer the civilians.
The Defence further argues that he cannot be held responsible for crimes
that he was unaware were actually occurring. In making
this argument, the
Defence misunderstands the third category of joint criminal enterprise liability.
For an accused to
incur criminal responsibility for acts that are natural
and foreseeable consequences of a joint criminal enterprise, it is not
necessary
to establish that he was aware in fact that those other acts would have occurred.
It is sufficient to show that
he was aware that those acts outside the agreed
enterprise were a natural and foreseeable consequence of the agreed joint
criminal enterprise, and that the accused participated in that enterprise
aware of the probability that other crimes may
result. As such, it was unnecessary
for the Trial Chamber to conclude that Radislav Krstic was actually aware
that those
other criminal acts were being committed; it was sufficient that
their occurrence was foreseeable to him and that those other
crimes did in
fact occur.
The Defence further asserts that Radislav Krstic should not be found guilty
with respect to the crimes committed at Potocari
on 12 and 13 July 1995 because
General Zivanovic was Commander of the Drina Corps until 13�July 1995.[263]
This argument is inapposite. The responsibility of Radislav Krstic for the
crimes committed at Potocari arose from his
individual participation in a
joint criminal enterprise to forcibly transfer civilians. The opportunistic
crimes were natural
and foreseeable consequences of that joint criminal enterprise.
His conviction for these crimes does not depend upon the rank
Krstic held
in the Drina Corps staff at the time of their commission. Radislav�Krstic�s
appeal against his convictions
for the opportunistic crimes that occurred
at Potocari as a natural and foreseeable consequence of his participation
in
the joint criminal enterprise to forcibly transfer is dismissed.
IV. THE DISCLOSURE PRACTICES OF THE PROSECUTION AND
RADISLAV KRSTIC�S RIGHT TO A FAIR TRIAL
The Defence has alleged, as a further ground for appeal, that the Prosecutor�s
disclosure practices violated Radislav Krstic�s
right to a fair trial under
Article 20 of the Statute.[264] The Appeals
Chamber will address each of the alleged practices which the Defence argues
resulted in prejudice to its case,
namely: withholding copies of exhibits
for tactical reasons ; concealing a tape for later submission as evidence
in cross-examination;
various violations of Rule 68 (disclosure of exculpatory
material); and the questionable credibility of the testimony of two
witnesses.
As a general proposition, where the Defence seeks a remedy for the Prosecution�s
breach of its disclosure obligations under
Rule 68, the Defence must show
(i) that the Prosecution has acted in violation of its obligations under Rule
68, and (ii
) that the Defence�s case suffered material prejudice as a result.[265]
In other words, if the Defence satisfies the Tribunal that there has been
a failure by the Prosecution to comply with Rule
68, the Tribunal - in addressing
the aspect of appropriate remedies - will examine whether or not the Defence
has been
prejudiced by that failure to comply[266]
before considering whether a remedy is appropriate.[267]
A. Withholding copies of exhibits for tactical
reasons
Prior to trial, and pursuant to Rule 65ter(E) (as it then was),[268]
the Defence sought copies of exhibits upon which the Prosecution intended
to rely at trial. The Prosecution refused to
disclose these exhibits on the
basis that it was not bound to do so absent a request for reciprocal disclosure
under Rule
67( C).[269] The matter was
raised in a pre-trial conference, where the Defence was denied access to the
documents in question.[270] The exhibits
relied upon by the Prosecution were subsequently disclosed on a piecemeal
basis throughout the trial.
In refusing to order the Prosecution to disclose its exhibits prior to
trial, the pre-trial Judge held that if the Prosecution
was obliged to communicate
all of its exhibits to the Defence, in the absence of any reciprocal disclosure
by the Defence
under Rule 67,[271] an
inequality of arms would result.[272]
On appeal, the Defence argues that the pre-trial judge erred in finding
that the Prosecution was not obliged by Rule 65ter to disclose copies
of exhibits to the Defence prior to the commencement of trial, and that Krstic
therefore did not receive
a fair trial.[273]
The Defence seeks a re-trial as a remedy.[274]
Was the Prosecution obliged to disclose copies of
exhibits under Rule 65ter (as it was) at the time of trial?
The Defence makes its submission in two parts. The first part relies on
the reasoning set out in a decision in Krajisnik & Plavsic,[275]
delivered after the closure of arguments in the Krstic trial.
That decision held that Rule 65ter(E) obliged the Prosecution to disclose
copies of exhibits to the Defence prior to trial.[276]
The second part of the Defence�s submission relies upon an amendment to
Rule 65ter(E), which was adopted by the Judges of the Tribunal on 13
December 2001.[277] That amendment altered
the terms of Rule 65ter(E) so as to explicitly require the Prosecution
to provide to the Defence copies of exhibits listed in pre-trial disclosure.[278]
The Defence submits that this subsequent amendment demonstrates that the decision
in Krajisnik & Plavsic was adopted by the entire Tribunal.[279]
In contrast to the finding in the Krstic pre-trial conference, the
Trial Chamber in Krajisnik & Plavsic held:
The only way in which a defence can properly prepare
for trial is by having notice in advance of the material on which the
Prosecution intends to rely, including exhibits. The Prosecution, by not
disclosing the documents prior to trial,
places the defence in a position
in which it will not be able to prepare properly; and it is this fact
that is
likely to lead to a violation of the principle of equality of
arms.[280]
As such, that Trial Chamber held that Rule 65ter(E)(iii)
required the Prosecution to disclose the actual exhibits appearing in the
list, irrespective of any reciprocal
pre-trial disclosure of exhibits by the
Defence under Rule 67. The Trial Chamber in Krajisnik & Plavsic reasoned
that, since Rule 65ter (E)(iii) referred to possible objections by
the Defence to the authenticity of the exhibits, the Defence would need to
have
access to those exhibits in order to assess their authenticity.[281]
The subsequent amendment of the Rule adopts this approach. At issue is
whether the amendment to Rule 65ter reflects a consensus as to the
proper interpretation of the former Rule, and whether the Trial Chamber in
Krajisnik & Plavsic accurately described that interpretation.
The Appeals Chamber rejects the argument by the Defence that the amendment
to Rule 65ter(E) binds the Appeals Chamber to adopt the interpretation
submitted by the Defence. It is common for the Rules to be amended
from time
to time where those Rules are shown through practice to require clarification
or modification. At most, the amendment
of the Rule may cast light on the
ambiguity of the former formulation of the Rule, but it does not necessarily
assist in
the interpretation of it. The new Rule 65ter(E) requires
the Prosecution to provide the Defence with access to copies of the Prosecution�s
exhibits prior to trial.
Prior to the amendment, however, the actual scope
of the Rule was open to interpretation, as shown by the contrasting decisions
of the Krstic pre-trial conference and of the Trial Chamber in Krajisnik
& Plavsic.
The text of the former Rule 65ter(E) did not expressly require exhibits
themselves to be disclosed, but referred only to them being �listed�, suggesting
that Rule 65ter(E) was not a means by which the disclosure of exhibits
could be secured. The subsequent amendment to the Rules suggests, however,
that the judges of the Tribunal have recognised that this practice may lead
both the Defence and the Prosecution into difficulties
when it comes to contesting
the authenticity of exhibits. Where the parties contest exhibits, delays to
the trial could
occur while adjournments are granted in order to permit the
parties to investigate those exhibits as they are tendered. As such,
the subsequent
amendment may have been a matter relevant to the efficient management of the
trial itself, and not the result
of any perceived unfairness to the Defence.
Furthermore, in this case the Prosecutor had reached an agreement with
Defence Counsel � at the suggestion of the Trial Chamber
- and established
a regime for the disclosure of certain evidence.[282]
In agreeing to the disclosure regime with the Defence, the Prosecution was
in fact exceeding its obligations under the
Rules in as much as those obligations
had been determined pre-trial.[283] At
trial, the Defence did not object to this agreement[284]
and made no complaint regarding the disclosure regime.[285]
On appeal, the Prosecution argues that the Defence�s acceptance of this regime
means that the Defence cannot now claim
that the regime was unfair.
The Appeals Chamber does not agree that initial compliance by the Defence
with the disclosure regime can be a basis for refusing
to allow the Defence
to argue on appeal that it was unfair. However, to succeed on this ground
of appeal, the Defence would
have to establish that it was prevented from
properly investigating the authenticity of the exhibits by the Trial Chamber�s
interpretation of the Rule, and that it suffered prejudice as a result. The
Defence has not established this. On the contrary,
the Trial Chamber did permit
adjournments which allowed the Defence the opportunity to contest the authenticity
of various
exhibits tendered by the Prosecution.[286]
The Appeals Chamber accordingly dismisses this ground of appeal.
B. Concealing a tape and its later submission
as evidence in cross-examination
During the presentation of the Defence�s case at trial, the Prosecution
introduced taped evidence that was played to Radislav
Krstic during his cross-examination.
The existence of the taped evidence had not been disclosed to the Defence
until after
the closure of both the Prosecution�s case and the evidence-in-chief
of the accused,[287] even though the Prosecution
had been in possession of it for some time. The Defence had, however, been
aware of the contents
of the tape prior to its introduction to the Trial Chamber,[288]
and had not objected to it being played at the time.[289]
On this appeal, the Defence submits that a new trial should be ordered
for two reasons: the alleged impossibility of the Trial
Chamber ignoring the
contents of the tape; and the Prosecution�s employment of so-called �sharp�
trial tactics.[290]
1. The alleged impossibility of the Trial Chamber
ignoring the contents of the tape
The Defence argues that, once the tape had been played to the Trial Chamber,
it became impossible for the Trial Chamber to ignore
its contents when deciding
on the guilt and sentence of the accused,[291]
even though the Trial Chamber had excluded it from evidence.[292]
The Appeals Chamber does not accept this argument. The role of Judges as
arbiters of both fact and of law is essential to the
basic functioning of
the Tribunal. Judges are frequently required to disregard evidence from their
deliberations, not only
as an incident to their role as Judges, but also as
an acknowledged part of their judicial function in assessing the admissibility
of evidence at trial. [293]
The Defence has shown neither the existence of any prejudice[294]
resulting from the playing of the tape, nor that the contents of the tape
were taken into account or relied upon by the
Trial Chamber in arriving at
its conclusions.[295] There are no grounds
to support the Defence�s submission that the playing of the tape influenced
the Judges, and therefore
no re-trial is warranted.
2. �Sharp� Trial Tactics
The Defence argues that the manner in which the tape was used constituted
a �sharp� trial tactic and that the Appeals Chamber
should deter future prosecutorial
misconduct by granting the Defence a re-trial.[296]
The Prosecution has defended its conduct by arguing that there is no directly
applicable Rule prohibiting parties from
introducing evidence in the manner
described.[297]
The allegation made by the Defence is serious, and the Appeals Chamber
treats it accordingly. The Defence suggests that the
Prosecution deliberately
declined to disclose the tape as an exhibit, deciding instead for tactical
reasons to conceal
it for use in cross-examination �so that the defence would
not have an opportunity to explain it.�[298]
It is true that the contents of the tape were ultimately excluded by a Decision
of the Trial Chamber.[299] In that Decision,
the Trial Chamber considered the Tribunal�s practice relating to the admission
of rebuttal evidence.[300] That practice
precludes the admission of rebuttal evidence which could not reasonably have
been anticipated.
The Decision of the Trial Chamber, together with the nature of the evidence
in question and the amount of time in which the
Prosecution possessed it,
support the Defence�s submission. There appear to be sufficient grounds in
the circumstances
to question the propriety of the Prosecution as regards
the disclosure of this evidence. Where counsel has engaged in such misconduct,
the appropriate sanctions are provided by Rule 46 (Misconduct of Counsel).
Given that the tape was excluded from consideration
at trial, the Appeals
Chamber concludes that the application of those Rules, and not a re-trial,
is the correct way to
address the conduct of the Prosecution as regards the
concealed tape.
The Defence�s appeal for a re-trial on the grounds of concealing the tape
is accordingly dismissed, and the Appeals Chamber
considers the appropriate
response to the Prosecution�s conduct below.
C. The Various Violations of Rule 68
The Defence argues that the Prosecution violated its disclosure obligations
under Rule 68 by: failing to disclose a number of
witness statements containing
exculpatory material; failing to disclose exculpatory material amongst other
evidence without
identifying that material as exculpatory; preventing the
Defence from taking copies of exculpatory materials, and instead requiring
the Defence to view the materials at the offices of the Prosecution; and failing
to make two disclosures as soon as practicable.
1. Alleged Breach of Rule 68 for failure to disclose
witness statements containing exculpatory material
The Defence submits that a number of interviews with witnesses, conducted
by the Prosecution prior to the Trial Chamber delivering
Judgement, contained
exculpatory evidence and that the failure of the Prosecution to disclose this
material at that time
constituted a breach of Rule 68.[301]
The Prosecution conceded that of the ten witness statements filed by the Defence
in its first Rule 115 Motion, six �fall
within the ambit of Rule 68,�[302]
but submits that the other four statements did not fall within the Rule, and
that in any case, the Defence has been unable
to establish prejudice resulting
from the failure to disclose.[303]
(a) Standard for characterisation of evidence as
Rule 68 Material
The jurisprudence of the Tribunal mirrors the text of the Rule itself,
and has established that material will fall within the
ambit of Rule 68 if
it tends to suggest the innocence or mitigate the guilt of the accused, or
affects the credibility
of Prosecution evidence.[304]
Material will affect the credibility of the Prosecution�s evidence if it undermines
the case presented by the Prosecution
at trial; material to be disclosed under
Rule 68 is not restricted to material which is in a form which would be admissible
in evidence.[305] Rather, it includes
all information which in any way tends to suggest the innocence or mitigate
the guilt of an accused
or may affect the credibility of Prosecution evidence,
as well as material which may put an accused on notice that such material
exists.[306]
The Prosecution argues that any interpretation of Rule 68 should draw upon
the practice of domestic jurisdictions with comparable
disclosure regimes.[307]
It relies heavily upon cases from the United States in arguing that, for a
document to fall within Rule 68, it must be
exculpatory �on its face.�[308]
The Appeals Chamber finds the meaning and purpose of Rule 68 to be sufficiently
clear, and does not accept that the jurisprudence
of the United States or
other jurisdictions is relevant to determining its scope.
The disclosure of exculpatory material is fundamental to the fairness of
proceedings before the Tribunal, and considerations
of fairness are the overriding
factor in any determination of whether the governing Rule has been breached.
The Appeals
Chamber is conscious that a broader interpretation of the obligation
to disclose evidence may well increase the burden on the
Prosecution, both
in terms of the volume of material to be disclosed, and in terms of the effort
expended in determining
whether material is exculpatory. Given the fundamental
importance of disclosing exculpatory evidence, however, it would be against
the interests of a fair trial to limit the Rule�s scope for application in
the manner suggested by the Prosecution.
The Appeals Chamber will proceed with its consideration of the Rule 68-based
arguments relating to exculpatory material on this
basis.
(b) Did the four witness statements constitute
exculpatory evidence?
As discussed above, the disputed evidence relates to the statements of
four protected witnesses submitted on appeal as additional
evidence pursuant
to Rule 115.[309]
In the first statement, it was said that Colonel Beara had directly requested
the witness to prepare for the burial of Muslim
men executed after the fall
of Srebrenica. The Defence claims that this is evidence of the existence of
a parallel chain
of command, because Colonel Beara did not involve Radislav
Krstic in the action.[310] The Appeals
Chamber has already determined that the testimony of this witness does not
support the Defence�s submissions.[311]
Regarding the second statement, the Defence submits that it was an additional
example of General Mladic and the Main Staff bypassing
the traditional chain
of command, thereby distancing Krstic from the events that occurred.[312]
The Appeals Chamber has found that this evidence does not constitute direct
evidence that the Main Staff bypassed Radislav
Krstic,[313]
and that in any event, this evidence could not have altered the verdict of
the Trial Chamber.[314]
The third statement is from a witness who allegedly told the Prosecution
that the prisoners in Bratunac were under the control
of the military�s Security
Service.[315] The Defence argues that
this evidence supports Radislav Krstic�s position that he had no control over
the prisoners, and
that the Security Service acted independently of the Corps
Command.[316] The Appeals Chamber has
already found that this evidence would not have made a difference to the verdict
of the Trial Chamber,
in that it does not in any way suggest that the Drina
Corps did not or would not have known of those events.[317]
The fourth statement is that of a witness who indicated that while the
order appointing Krstic to the position of Corps Commander
was dated 13 July
1995, this did not necessarily imply that Radislav Krstic took up his duties
at that time, nor that he
had to cover the duty on that day.[318]
The Appeals Chamber has already determined that this evidence is insignificant
in light of the abundant evidence considered
by the Trial Chamber that Krstic
in fact assumed his command on 13 July 1995.[319]
(c) Remedy
As a potential remedy, the Defence has submitted that the Prosecution�s
failure to disclose material exculpatory under Rule
68 warrants a re-trial.[320]
In addition, where an accused has been prejudiced by a breach of Rule 68,
that prejudice may be remedied where appropriate
through the admission of
additional evidence on appeal under Rule 115.[321]
On this appeal, the evidence in question did not justify its admission under
Rule 115,[322] and the Appeals Chamber
finds that it does not justify a re-trial. Nevertheless, it remains the fact
that the Defence was
able to seek admission of the material as additional
evidence. It has therefore not shown that Radislav Krstic have suffered
any
prejudice. The Defence�s petition is therefore dismissed.
To the extent that the Appeals Chamber has found that the Prosecution has
failed to respect its obligations under the Rules,
those breaches fall to
be addressed by the appropriate remedies, namely Rule 46 (Misconduct of Counsel)
and Rule 68bis (Failure to Comply with Disclosure Obligations).
2. Alleged Breach of Rule 68 for the Prosecution�s
failure to identify evidence disclosed under Rule 68 as being exculpatory
The Defence submits that the Rule 68 disclosures of 25 June 2000 and 5
March 2001 made during trial were buried beneath other
material provided at
the time, and that the failure of the Prosecution to identify the disclosed
material as being disclosed
under Rule 68 breached the spirit and letter of
that Rule.[323] In response, the Prosecution
argues that there is no specific requirement obliging it to indicate the provision
in accordance
with which a disclosure of documents occurs, or to identify
the specific material disclosed as exculpatory.[324]
The Appeals Chamber agrees with the Prosecution that Rule 68 does not require
the Prosecution to identify the material being
disclosed to the Defence as
exculpatory. The jurisprudence of the Tribunal shows that while some Trial
Chambers have recognised
that it would be fairer for the Prosecution to do
so,[325] there is no prima facie requirement,
absent an order of the Trial Chamber to that effect, that it must do so.
However, the fact that there is no prima facie obligation on the
Prosecution to identify the disclosed Rule 68 material as exculpatory does
not prevent the accused from
arguing, as a ground of appeal, that he suffered
prejudice as a result of the Prosecution�s failure to do so.
In this case, the Appeals Chamber has not been persuaded by the Defence
that the failure of the Prosecution to identify exculpatory
evidence it disclosed
resulted in any prejudice to the Defence. The Defence had both sufficient
time in which to analyse
the material, and the opportunity to challenge it
during cross-examination.
This ground of appeal accordingly is dismissed.
3. Whether Rule 68 requires the Prosecution to allow
the Defence to take copies of exculpatory material
The Defence submits that, in only being permitted to view copies of exculpatory
evidence in the Prosecution�s office, and being
refused copies of the materials,
the Prosecution breached Rule 68, as well as its obligation to act as a �minister
of justice.�[326]
On a plain reading of Rule 68, the Prosecution is merely obliged to disclose
the existence of Rule 68 material, not to provide
the actual material itself.
If the Defence had demonstrated that the preparation of its case had been
prejudiced by the
Defence only being able to view the Rule 68 material held
by the Prosecutor, then it should have brought this prejudice to the
attention
of the Trial Chamber. The Prosecution did disclose the existence of this material.
The Defence has not persuaded
the Appeals Chamber that it did indeed suffer
any prejudice during the trial, and this ground of appeal is dismissed.
4. Whether two disclosures were made �as soon as
practicable�
The Defence submits that certain disclosures[327]
were not made �as soon as practicable,� as required by Rule 68. For example,
the disclosures of 25 June 2000 occurred over
two years after the Prosecution
came into possession of the evidence, and more than three months after the
trial had begun.[328] The disclosures
of 5 March 2001 occurred over three months after the Prosecution came into
possession of the evidence.[329] The Defence
has also alleged that the Prosecution deliberately withheld evidence in order
eventually to avail itself of
the reciprocal discovery mechanism of Rules
67(B) and 67(C). [330]
The Appeals Chamber is sympathetic to the argument of the Prosecution that
in most instances material requires processing, translation,
analysis and
identification as exculpatory material. The Prosecution cannot be expected
to disclose material which � despite
its best efforts - it has not been able
to review and assess.[331] Nevertheless,
the Prosecution did take an inordinate amount of time before disclosing material
in this case, and has failed
to provide a satisfactory explanation for the
delay. The Prosecution�s submission that the Defence had enough time to consider
the material[332] may allay allegations
of prejudice to the Defence�s case, but it does not contradict the allegation
that the Prosecution
breached Rule 68 by not providing the material as soon
as practicable. It is not for the Prosecution to determine the amount
of time
the Defence requires to conduct its case.
In the absence of sufficient evidence, the Appeals Chamber decides not
to consider whether or not the Prosecution deliberately
withheld evidence
from the Defence as a trial tactic. However, the Appeals Chamber does find
that the disclosures of 25
June 2000 and 5 March 2001 were not made as soon
as practicable, and that the Prosecution has, as a result, breached Rule 68.
As has already been discussed,[333]
a prerequisite for the remedy sought on appeal for breaches of Rule 68 is
proof of consequential prejudice to the Defence.
The Defence has not established
any such prejudice from the delayed disclosures by the Prosecution.
The Appeals Chamber does, however, find that the Prosecution did not meet
its obligations under the Rules. The consequences
are governed by Rule 46
(Misconduct of Counsel) and Rule 68bis (Failure to Comply with Disclosure
Obligations ).[334]
D. The Questionable Credibility of the Witnesses:
Sefer Halilovic and Enver Hadzihasanovic
The Trial Chamber called witnesses proprio motu to testify at trial
pursuant to its powers under Rule 98.[335]
Two of the witnesses were at the time the subject of separate Prosecution
investigations, a fact which � along with the
evidence from those investigations
- was disclosed to the Trial Chamber, but not to the Defence.[336]
The first witness, Enver Hadzihasanovic, was subsequently indicted in a
sealed indictment on 5 July 2001.[337]
Mr. Hadzihasanovic�s indictment was made public on the same day (2 August
2001) that the Judgement of the Trial Chamber
in this case was rendered. The
second witness, Sefer Halilovic, was indicted in a sealed indictment on 10
September 2001.[338]
The Defence argues that the Prosecution�s failure to disclose information
relating to the investigations of these two witnesses
constituted a breach
of Rule 68,[339] in that the information
may have affected the credibility of the witnesses concerned. The Prosecution
responds that the
evidence in question was not exculpatory within the terms
of Rule 68,[340] and that in any event
it fulfilled its obligations by disclosing the relevant information to the
Trial Chamber. [341]
While the Prosecution did disclose to the Trial Chamber the fact that the
two witnesses were under investigation, it has not
been established that the
Prosecution also disclosed to the Trial Chamber any other evidence that may
have been of relevance
to the credibility of those same witnesses. The Appeals
Chamber does not accept that evidence called proprio motu by a Trial
Chamber can relieve the Prosecution of its obligation under Rule 68 in relation
to that evidence. The scope of
Rule 68 is clear: It applies to any material
known to the Prosecution that either suggests the innocence or mitigates the
guilt of the accused, or evidence that may affect the credibility of Prosecution
evidence.
The Prosecution has submitted that where a witness is called by the Trial
Chamber proprio motu under Rule 98 to give evidence, the favourable
or unfavourable nature of that evidence will ordinarily only be known after
the evidence is given. As such, the Prosecution argues that a finding for
the Defence in this case would impose a burden
on the Prosecution to disclose
any information in its possession which could conceivably be used for the
impeachment of
a witness, and that such a burden would be too onerous.[342]
The Appeals Chamber cannot see the relevance of this argument. The Prosecution�s
obligation to disclose under Rule 68 is a continuing
obligation,[343]
precisely because the relevance to the case of certain material held by the
Prosecution may not be immediately clear. Rule
68 prima facie obliges
the Prosecution to monitor the testimony of witnesses, and to disclose material
relevant to the impeachment of the
witness, during or after testimony. If
the amount of material is extensive, the parties are entitled to request an
adjournment
in order to properly prepare themselves.
The testimony of the two witnesses concerned was not relevant merely to
peripheral background matters, as the Prosecution suggests.[344]
The testimony of Mr. Halilovic was favourable to the Prosecution�s case because
it supported the conclusions that the Serbian
forces possessed a genocidal
intent during their operations in the Drina River valley, and also that the
men who fled in
the column were doing so as a result of fear.[345]
This climate of fear was later held by the Trial Chamber to have been part
of the purpose of a joint criminal enterprise.[346]
The testimony of Mr. Hadzihasanovic was favourable in part to the Prosecution�s
case for the same reasons.[347]
In light of the fact that the Prosecution was adhering to an order of the
Trial Chamber that it disclose the witness statements
only to the Trial Chamber
under seal and ex parte,[348]the
Appeals Chamber cannot find fault with the conduct of the Prosecution. Furthermore,
the Defence has failed to demonstrate
that its case was materially prejudiced
as a result of the reliance by the Trial Chamber on the testimony of these
witnesses.
The Defence itself had in fact relied on some of this testimony
in its closing submissions. As the Trial Chamber was aware of
the circumstances
in which this evidence was handled, and notwithstanding the pertinence of
this testimony to the Prosecution�s
case, the Appeals Chamber finds that there
could have been no prejudice to the Defence�s case.
As such, the Appeals Chamber finds that no prejudice has been suffered
by the Defence. This ground of appeal is dismissed.
E. Addressing the Conduct of the Prosecution
It remains for the Appeals Chamber to consider what disciplinary avenues,
if any, are the appropriate means of addressing the
conduct of the Prosecution
in this case.
The right of an accused to a fair trial is a fundamental right, protected
by the Statute, and Rule 68 is essential for the conduct
of fair trials before
the Tribunal. Where an accused can only seek a remedy for the breaches of
a Rule in exceptional circumstances
� in particular where the very enforcement
of that Rule relies for its effectiveness upon the proper conduct of the Prosecution
- any failure by the Appeals Chamber to act in defence of the Rule would endanger
its application. The Appeals Chamber
has a number of options at its disposal
in these circumstances, based on Rule 46 (Misconduct of Counsel) and Rule
68bis (Failure to Comply with Disclosure Obligations).
Rule 68bis in particular is specific to disclosure obligations,
and provides the Tribunal with a broad discretionary power to impose sanctions
on a defaulting party, proprio motu if necessary.
The Appeals Chamber notes that the Prosecution has already described in
some detail why certain materials were not disclosed,
including declarations
by Senior Trial Attorneys in the Office of the Prosecutor.[349]
While the disclosure practices of the Prosecution in this case have on occasion
fallen short of its obligations under the
applicable Rules, the Appeals Chamber
is unable to determine whether the Prosecution deliberately breached its obligations.
In light of the absence of material prejudice to the Defence in this case,
the Appeals Chamber does not issue a formal sanction
against the Prosecution
for its breaches of its obligations under Rule 68. The Appeals Chamber is
persuaded that, on the
whole, the Prosecution acted in good faith in the implementation
of a systematic disclosure methodology which, in light of the
findings above,
must be revised so as to ensure future compliance with the obligations incumbent
upon the Office of the
Prosecutor. This finding must not however be mistaken
for the Appeals Chamber�s acquiescence in questionable conduct by the
Prosecution.
In light of the allegations of misconduct being made against the Prosecution
in this case, the Appeals Chamber orders that the
Prosecutor investigate the
complaints alleged and take appropriate action. The Appeals Chamber will not
tolerate anything
short of strict compliance with disclosure obligations,
and considers its discussion of this issue to be sufficient to put the
Office
of the Prosecutor on notice for its conduct in future proceedings.
V. THE TRIAL CHAMBER�S ANALYSIS OF CUMULATIVE CONVICTIONS
The Prosecution challenges the Trial Chamber�s non-entry, as impermissibly
cumulative, of Radislav Krstic�s convictions for
extermination and persecution
of the Bosnian Muslims of Srebrenica between 13 and 19 July 1995, and for
murder and inhumane
acts as crimes against humanity committed against the
Bosnian Muslim civilians in Potocari between 10 and 13 July 1995. The
Trial
Chamber disallowed convictions for extermination and persecution as impermissibly
cumulative with Krstic�s conviction
for genocide. It also concluded that the
offences of murder and inhumane acts as crimes against humanity are subsumed
within
the offence of persecution where murder and inhumane acts form the
underlying acts of the persecution conviction.
The Defence urges a dismissal of the Prosecution�s appeal because the Prosecution
does not seek an increase of the sentence
in the event its appeal is successful.[350]
As the Appeals Chamber emphasised, however, the import of cumulative convictions
is not limited to their impact on the
sentence. Cumulative convictions impose
additional stigma on the accused and may imperil his eligibility for early
release.[351] On the other hand, multiple
convictions, where permissible, serve to describe the full culpability of
the accused and to
provide a complete picture of his criminal conduct.[352]
The Prosecution�s appeal is therefore admissible notwithstanding the fact
that it does not challenge the sentence.
A. Applicable Law
The established jurisprudence of the Tribunal is that multiple convictions
entered under different statutory provisions, but
based on the same conduct,
are permissible only if each statutory provision has a materially distinct
element not contained
within the other.[353]
An element is materially distinct from another if it requires proof of a fact
not required by the other element.[354]
Where this test is not met, only the conviction under the more specific provision
will be entered.[355] The more specific
offence subsumes the less specific one, because the commission of the former
necessarily entails the
commission of the latter.
B. Conviction for Extermination as a Crime Against
Humanity
The first vacated conviction that the Prosecution seeks to reinstate is
the conviction for extermination under Article 5 based
on the killing of the
Bosnian Muslim men of Srebrenica.[356]
The Trial Chamber held that this conviction was impermissibly cumulative with
Radislav Krstic�s conviction for genocide
under Article 4, which was based
on the same facts.[357] The Prosecution
argues that this decision rests on an erroneous premise, namely that Article
5�s requirement for the enumerated
crimes to be part of a widespread or systematic
attack against a civilian population is subsumed within the statutory elements
of genocide.[358]
This issue was confronted by the ICTR Appeals Chamber in Musema.
There, the Appeals Chamber arrived at a conclusion contrary to the one reached
by the Trial Chamber in this case. Echoing
the Prosecution�s argument here,
the ICTR Appeals Chamber permitted convictions for genocide and extermination
based on
the same conduct because �[g]enocide requires proof of an intent
to destroy, in whole or in part, a national, ethnical, racial
or religious
group, (which( is not required by extermination,� while �[e]xtermination as
a crime against humanity requires
proof that the crime was committed as a
part of a widespread or systematic attack against a civilian population, which
proof is not required in the case of genocide.�[359]
The Trial Chamber in this case concluded that the requirement of a widespread
and systematic attack against a civilian population
was subsumed within the
genocide requirement that there be an intent to destroy, in whole or in part,
a national, ethnical,
racial or religious group.[360]
In the Trial Chamber�s opinion, in order to satisfy this intent requirement,
a perpetrator of genocide must commit the
prohibited acts �in the context
of a manifest pattern of similar conduct,� or those acts must �themselves
constitute a
conduct that could in itself effect the destruction of the group,
in whole or part, as such.�[361] Because
this requirement excluded �random or isolated acts,� the Trial Chamber concluded
that it duplicated the requirement
of Article 5 that a crime against humanity,
such as extermination, form a part of a widespread or systematic attack against
a civilian population.[362]
The intent requirement of genocide, however, contains none of the elements
the Trial Chamber read into it. As the Trial Chamber
correctly acknowledged,
the intent requirement of genocide is the intent to destroy, in whole or in
part, a group enumerated
both in Article 4 and in the Genocide Convention.[363]
This intent differs in several ways from the intent required for a conviction
for extermination.
The offence of extermination as a crime against humanity requires proof
that the proscribed act formed a part of a widespread
or systematic attack
on the civilian population, and that the perpetrator knew of this relationship.[364]
These two requirements are not present in the legal elements of genocide.
While a perpetrator�s knowing participation in
an organized or extensive attack
on civilians may support a finding of genocidal intent, it remains only the
evidentiary
basis from which the fact-finder may draw this inference. The
offence of genocide, as defined in the Statute and in international
customary
law, does not require proof that the perpetrator of genocide participated
in a widespread and systematic attack
against civilian population.[365]
In reasoning otherwise, the Trial Chamber relied on the definition of genocide
in the Elements of Crimes adopted by the ICC.
This definition, stated the
Trial Chamber, �indicates clearly that genocide requires that �the conduct
took place in the
context of a manifest pattern of similar conduct.��[366]
The Trial Chamber�s reliance on the definition of genocide given in the ICC�s
Elements of Crimes is inapposite. As already
explained, the requirement that
the prohibited conduct be part of a widespread or systematic attack does not
appear in
the Genocide Convention and was not mandated by customary international
law.[367] Because the definition adopted
by the Elements of Crimes did not reflect customary law as it existed at the
time Krstic
committed his crimes, it cannot be used to support the Trial Chamber�s
conclusion.
The Trial Chamber also concluded that the definitions of intent for extermination
and genocide �both require that the killings
be part of an extensive plan
to kill a substantial part of a civilian population.�[368]
The Appeals Chamber has explained, however, that �the existence of a plan
or policy is not a legal ingredient of the crime�
of genocide.[369]
While the existence of such a plan may help to establish that the accused
possessed the requisite genocidal intent, it
remains only evidence supporting
the inference of intent, and does not become a legal ingredient of the offence.[370]
Similarly, the Appeals Chamber has rejected the argument that the legal elements
of crimes against humanity (which include
extermination) require a proof of
the existence of a plan or policy to commit these crimes.[371]
The presence of such a plan or policy may be important evidence that the attack
against a civilian population was widespread
or systematic, but it is not
a legal element of a crime against humanity. As neither extermination nor
genocide requires
the proof of a plan or policy to carry out the underlying
act, this factor cannot support the Trial Chamber�s conclusion that
the offence
of extermination is subsumed in genocide.
Finally, the intent requirement of genocide is not limited to instances
where the perpetrator seeks to destroy only civilians.
Provided the part intended
to be destroyed is substantial, and provided that the perpetrator intends
to destroy that part
as such, there is nothing in the definition of genocide
prohibiting, for example, a conviction where the perpetrator killed
detained
military personnel belonging to a protected group because of their membership
in that group. It may be that, in
practice, the perpetrator�s genocidal intent
will almost invariably encompass civilians, but that is not a legal requirement
of the offence of genocide. As the Appeals Chamber explained, the inquiry
into whether two offences are impermissibly cumulative
is a question of law.[372]
The fact that, in practical application, the same conduct will often support
a finding that the perpetrator intended to
commit both genocide and extermination
does not make the two intents identical as a matter of law.
The Trial Chamber�s conclusion that convictions for extermination under
Article 5 and genocide under Article 4 are impermissibly
cumulative was, accordingly,
erroneous.
C. Conviction for Persecution as a Crime Against
Humanity
The Prosecution next argues that the Trial Chamber erred in setting aside
Krstic�s conviction for persecution under Article
5 for the crimes resulting
from the killings of Bosnian Muslims of Srebrenica.[373]
The Trial Chamber concluded, for the same reasons it disallowed the conviction
for extermination, that the offence of persecution
as a crime against humanity
was impermissibly cumulative with the conviction for genocide.[374]
Persecution and extermination, as crimes against humanity under Article
5, share the requirement that the underlying act form
a part of a widespread
or systematic attack against a civilian population and that it be perpetrated
with the knowledge
of that connection. The analysis above concerning extermination
therefore applies also to the relationship between the statutory
elements
of persecution and genocide. The offence of genocide does not subsume that
of persecution. The Trial Chamber�s
conclusion to the contrary was erroneous.
D. Convictions for Murder and Inhumane Acts as
Crimes Against Humanity
The Prosecution seeks reinstatement of two other convictions. The first
is the conviction for murder, as a crime against humanity,
of Bosnian Muslim
civilians in Potocari.[375] The Trial
Chamber set aside this conviction as impermissibly cumulative with the conviction
for persecution perpetrated
through murder of these civilians.[376]
The second is the conviction for inhumane acts, based on the forcible transfer
of Bosnian Muslim civilians to Potocari.[377]
The Trial Chamber concluded that this conviction was subsumed within the conviction
for persecution based on the inhumane
acts of forcible transfer.[378]
The Appeals Chamber addressed these two issues in its recent decisions
in Vasiljevic and Krnojelac. In Vasiljevic, the Appeals
Chamber disallowed convictions for murder and inhumane acts under Article
5 as impermissibly cumulative with
the conviction for persecution under Article
5 where the persecution was accomplished through murder and inhumane acts.[379]
The Appeals Chamber concluded that the offence of persecution is more specific
than the offences of murder and inhumane
acts as crimes against humanity because,
in addition to the facts necessary to prove murder and inhumane acts, persecution
requires the proof of a materially distinct element of a discriminatory intent
in the commission of the act.[380] The
same result was reached by the Appeals Chamber in Krnojelac, which
concluded that �the crime of persecution in the form of inhumane acts subsumes
the crime against humanity of inhumane
acts.�[381]
The Prosecution argues at length that the crime of persecution can be committed
in many ways other than through murders or inhumane
acts.[382]
This observation is accurate, but entirely inapposite. Where the charge of
persecution is premised on murder or inhumane
acts, and such charge is proven,
the Prosecution need not prove any additional fact in order to secure the
conviction for
murder or inhumane acts as well. The proof that the accused
committed persecution through murder or inhumane acts necessarily includes
proof of murder or inhumane acts under Article 5. These offences become subsumed
within the offence of persecution.[383]
The Trial Chamber correctly recognised this principle, and the Prosecution�s
appeal on these issues is therefore dismissed.
VI. SENTENCING
The Trial Chamber imposed on Radislav Krstic a single sentence of 46 years�
imprisonment.[384] Both the Prosecution
and the Defence have appealed this sentence.[385]
A. Submissions
The Prosecution argues that the sentence imposed by the Trial Chamber was
inadequate because it failed properly to account either
for the gravity of
the crimes committed or for the participation of Radislav Krstic in those
crimes;[386] is inconsistent with ICTR
jurisprudence in comparable genocide cases;[387]
is based on Krstic�s �palpably lesser guilt�;[388]
and because the Trial Chamber erred in finding that premeditation was inapplicable
as an aggravating factor in this case.[389]
Consequently, the Prosecution argues that the Trial Chamber imposed a sentence
beyond its discretion,[390] and that the
sentence should be increased to life imprisonment, with a minimum of 30 years.[391]
The Defence argues that in imposing the sentence, the Trial Chamber failed
to have due regard to the sentencing practice of
the former Yugoslavia and
the courts of Bosnia and Herzegovina[392]
and to give adequate weight to what the Defence submits are mitigating circumstances.[393]
The Defence accordingly argues that the sentence should be reduced to a maximum
of 20 years.[394]
B. Discussion
The Appeals Chamber has overturned Krstic s conviction as a participant
in a joint criminal enterprise to commit genocide. It
has also disagreed with
the Trial Chamber that he was a direct participant in the murders of the Bosnian
Muslims under
Article�3, and in extermination and persecution under Article
5, all of which arise from the executions of the Bosnian Muslims
of Srebrenica
between 13 and 19 July 1995. In relation to each of these offences the Appeals
Chamber has instead concluded
that Krstic aided and abetted the commission
of these crimes.
In finding�Krstic criminally responsible as an aider and abettor, the Appeals
Chamber concluded that the contribution by the
Drina Corps personnel and assets
under his command was a substantial one. Indeed, without that assistance,
the Main Staff
would not have been able to carry out its plan to execute the
Bosnian Muslims of Srebrenica. �Krstic knew that buses he had
assisted in
procuring for the transfer of the women, children and elderly were being used
to transfer the males to various
detention sites. He also knew that Drina
Corps vehicles and personnel were being used to scout for detention sites
and
to escort and guard the Bosnian Muslim prisoners at various detention
sites. He also knew that heavy vehicles and equipment
belonging to the Drina
Corps under his command were being used to further the execution of the Bosnian
Muslim civilians.
This knowledge and these modes of assistance constitute
a substantial contribution to the commission of the crimes as required
for
a conviction for aiding and abetting the genocide of the Bosnian Muslims of
Srebrenica.
The Appeals Chamber concluded that Radislav Krstic willingly participated
in the joint criminal enterprise resulting in the
humanitarian crisis at Potocari,
and was aware that a natural and reasonable consequence of that humanitarian
crisis was
that crimes would be committed against the civilian population.
The Appeals Chamber has therefore upheld�Krstic�s convictions
for persecution
for murders, cruel and inhumane treatment, terrorising the civilian population,
forcible transfer and destruction
of personal property of Bosnian Muslim civilians
arising out of the treatment of the Bosnian Muslim civilians at Potocari.
While upholding this conviction, the Appeals Chamber has acknowledged, however,
that Radislav�Krstic and the Drina Corps
under his command did not personally
commit any crimes against the Bosnian Muslim civilians, other than assist
in the organisation
of the forcible transfer. Notably, it was established
that Krstic was only present in Potocari for an hour or two at the most,
and
there was no evidence that he actually witnessed any of the crimes being committed
against the Bosnian Muslim civilians,
or that his subordinates in the Drina
Corps directly witnessed them and reported to�Krstic. Furthermore, the Trial
Chamber
accepted that the transfer of the Bosnian Muslim civilians organised
by the Drina Corps was a disciplined and orderly operation,
and that�Krstic
specifically ordered that no harm was to befall the Bosnian Muslim civilians
being transferred forcibly.
In light of the findings in relation to Radislav Krstic�s form of responsibility,
an adjustment of the sentence will be necessary
in any event. It is nevertheless
appropriate first to consider and resolve the issues relating to sentencing
raised on
appeal.[395]
The relevant provisions on sentencing are Articles 23 and 24 of the Statute,
and Rules 100 to 106 of the Rules of Procedure
and Evidence. These provisions
constitute factors to be taken into consideration by the Trial Chamber when
deciding a sentence
on conviction.[396]
They do not constitute binding limitations on a Chamber�s discretion to impose
a sentence,[397] which must always be
decided according to the facts of each particular case.[398]
The jurisprudence of the ICTY and ICTR has also generated a body of relevant
factors to consider during sentencing.[399]
The Appeals Chamber has emphasised, however, that it is �inappropriate to
set down a definitive list of sentencing guidelines
for future reference,�[400]
given that the imposition of a sentence is a discretionary decision. The Appeals
Chamber has further explained that only
a �discernible error� in the exercise
of that sentencing discretion by the Trial Chamber may justify a revision
of the
sentence.[401]
It is therefore for the Appeals Chamber to determine whether the Trial
Chamber committed a discernible error in imposing a sentence
of 46 years on
Radislav Krstic.
1. The arguments concerning the gravity of the crimes
Radislav Krstic has committed and his participation therein
Both the Defence and the Prosecution have submitted arguments concerning
the gravity of the crimes alleged. The Prosecution
argues that in light of
the gravity of the crimes Krstic committed, he should be sentenced to life
imprisonment.[402] The Defence focuses
on the Trial Chamber�s recognition of Krstic�s limited participation in the
events of July 1995 and
submits that the sentence was unduly harsh.[403]
As discussed above, the Appeals Chamber will consider arguments relating
to sentencing only insofar as they allege the commission
of a discernible
error in the Trial Chamber�s exercise of its discretion.[404]
As to the level of Krstic�s participation in these crimes, the Appeals Chamber
has found his criminal responsibility to
be of lower magnitude than that found
by the Trial Chamber, and the impact of this finding is addressed below.
2. The arguments for consistent sentencing practice
The Prosecution argues, relying on the Jelisic Appeal Judgement,
that the Trial Chamber erred in the exercise of its discretion by imposing
a sentence that is not consistent
with sentences imposed for similar offences.[405]
In Jelisic, the Appeals Chamber did indeed recognise that a sentence
�may be thought to be capricious or excessive if it is out of reasonable
proportion
with a line of sentences passed in similar circumstances for the same offences.�[406]
The Appeals Chamber in the Jelisic case also held, however, that
similar cases do not provide �a legally binding tariff of sentences but a
pattern which emerges
from individual cases,� and that �(w(here there is �
disparity, the Appeals Chamber may infer that there was disregard of
the standard criteria by which sentence should be assessed, as prescribed
by the Statute
and set out in the Rules. But it is difficult and unhelpful
to lay down a hard and fast rule on the point ; there are a number
of variable
factors to be considered in each case.�[407]
The conclusion of the Appeals Chamber in the Jelisic case, as well
as in others,[408] is unequivocal: The
sentencing practice of the Tribunal in cases involving similar circumstances
is but one factor which
a Chamber must consider when exercising its discretion
in imposing a sentence.[409] The decision
is a discretionary one, turning on the circumstances of the particular case.
�What is important is that due
regard is given to the relevant provisions
of the Statute and the Rules, [the] jurisprudence of the Tribunal and ICTR,
and the circumstances of the case.�[410]
The Prosecution also argues that the Trial Chamber erred by failing to
consider carefully the ICTR jurisprudence relating to
sentencing.[411]
Although the Trial Chamber�s analysis of the ICTR jurisprudence relating to
sentencing was not as extensive or detailed
as that now provided by the Prosecution,
the Trial Chamber did expressly consider that jurisprudence.[412]
The Appeals Chamber concludes that the sentence of 46 years� imprisonment
imposed by the Trial Chamber � the highest fixed-term
sentence imposed by
this Tribunal to date[413] � sufficiently
reflected the gravity of the crimes of which Radislav Krstic was convicted.
In addition, a review of ICTR
sentencing practice in comparable cases does
not reveal a fixed rule requiring the imposition of a specified sentence for
genocide.[414] The Trial Chamber�s sentence
was therefore consistent with the practice of the ICTR.
In any event, and as already explained, the sentencing practice in comparable
cases is but one of several factors a Chamber
must consider in determining
an appropriate sentence. The Trial Chamber has a broad discretion to assess
that factor, depending
on the particular circumstances of the case before
it. In this case, the Trial Chamber imposed on Krstic a sentence which it
deemed appropriate on the basis of the particular circumstances surrounding
his conduct in and around Srebrenica in July
1995. The Trial chamber did not
commit a discernible error in the exercise of its sentencing discretion.
Given that the Appeals Chamber has reduced the level of criminal responsibility
in this case to aiding and abetting genocide,
the submission of the Prosecution
in this regard is in any event moot.
The Prosecution�s appeal on this ground is therefore dismissed.
3. The argument relating to �palpably lesser guilt�
The Trial Chamber held that Radislav Krstic �is guilty, but his guilt is
palpably lesser than others who devised and supervised
the executions all
through (the relevant period(.�[415] The
Prosecution argues that the Trial Chamber erred in deciding that Krstic deserved
a lesser sentence than other perpetrators
of these crimes whose guilt was
not adjudicated in this case. The Prosecution further argues that, by elevating
this factor
to a �pivotal � level, the Trial Chamber failed to give appropriate
consideration to Krstic�s individual responsibility.[416]
The Appeals Chamber agrees that Radislav Krstic�s guilt should have been
assessed on an individual basis. The Appeals Chamber
further agrees that the
comparative guilt of other alleged co-conspirators, not adjudicated in this
case, is not a relevant
consideration. The Appeals Chamber does not, however,
share the Prosecution�s interpretation of the Trial Judgement.[417]
The Trial Chamber was entitled to consider the conduct of Krstic in the proper
context, which includes the conduct of any
alleged co-perpetrators. A comprehensive
understanding of the facts of a particular case not only permits a consideration
of the culpability of other actors; indeed, it requires it in order to accurately
comprehend the events in question and to
impose the appropriate sentence.[418]
While the wording of the Trial Judgement may be misleading, the Trial Chamber
did not consider the allegedly higher culpability
of others in an inappropriate
way.
The Prosecution�s appeal on this ground is therefore dismissed.
4. The Prosecution�s argument concerning premeditation
as an aggravating factor
The Trial Chamber held that Radislav Krstic�s delayed participation precluded
a finding of any premeditation on his part.[419]
The Prosecution submits that the Trial Chamber erred discernibly in concluding
that premeditation was not an aggravating
factor in this case.[420]
On the facts considered by the Trial Chamber, it was within the Trial Chamber�s
discretion to conclude that premeditation was
not present and so could not
be an aggravating factor. With respect to the finding that Krstic participated
in genocide,
no premeditation was established.[421]
The same applies to Krstic for the opportunistic crimes that occurred at Potocari
on 12 � 13 July 1995.
There was an element of premeditation in the decision forcibly to transfer
the civilian population, but it was within the discretion
of the Trial Chamber
to discount this factor from having any bearing on the sentence imposed.
The Trial Chamber did not err in concluding that premeditation was not
an aggravating factor in this case.
5. The Defence�s argument regarding the sentencing
practice of the Former Yugoslavia
The Defence submits that the Trial Chamber incorrectly considered the 1998
law of Bosnia-Herzegovina, as opposed to the law
of the former Yugoslavia,
in its decision on sentence.[422] The
approach of the Tribunal regarding recourse to the sentencing practice of
the former Yugoslavia, pursuant to Article
24 1 of the Statute and to Rule
101(B)(iii), is best expressed in the decision of the Trial Chamber in Prosecutor
v. Kunarac et al:
Although the Trial Chamber is not bound to apply the
sentencing practice of the former Yugoslavia, what is required certainly
goes beyond merely reciting the relevant criminal code provisions of the
former Yugoslavia. Should they diverge,
care should be taken to explain
the sentence to be imposed with reference to the sentencing practice of
the former
Yugoslavia, especially where international law provides no
guidance for a particular sentencing practice. The Trial Chamber
notes
that, because very important underlying differences often exist between
national prosecutions and prosecutions
in this jurisdiction, the nature,
scope and the scale of the offences tried before the International Tribunal
do
not allow for an automatic application of the sentencing practices
of the former Yugoslavia.[423]
The Trial Chamber was therefore required to consider the sentencing practice
in the former Yugoslavia; this it did in paragraph
697 of the Trial Judgement.
The footnotes to that paragraph demonstrate that the Trial Chamber considered
the relevant
legislation as required and analysed that legislation in relation
to its findings. The Trial Chamber was entitled to consider,
in addition to
the SFRY law in force at the time of the commission of the crimes by Radislav
Krstic, how that law evolved
subsequently. The Trial Chamber ascertained that
the sentencing practice of the former Yugoslavia evolved in a way consonant
with the sentencing principles of this Tribunal. For example, the law of Bosnia-Herzegovina
abolished the death penalty
for crimes of which Krstic is convicted.[424]
Given the coherence of that abolishment with this Tribunal�s own sentencing
powers as set out in Article 24, the Trial
Chamber did not commit a discernible
error in referring to the 1998 law of Bosnia-Herzegovina.
Finally, the Tribunal � while being obliged to consider the sentencing
practice in the former Yugoslavia � is not bound by it.[425]
The Tribunal is not prevented from imposing a greater or lesser sentence than
would have been imposed under the legal regime
of the Former Yugoslavia.[426]
The Appeals Chamber is therefore unable to find a discernible error in
the reasoning of the Trial Chamber in this regard. The
Defence�s appeal on
this ground is dismissed.
6. The Defence�s argument as to inadequate weight
accorded to mitigating circumstances
The Defence submits that the Trial Chamber failed to give adequate weight
to the alleged mitigating circumstances.[427]
The Trial Chamber considered the circumstances identified by the defence,
but concluded that they did not constitute mitigating
circumstances.[428]
The Trial Chamber has discretion in deciding whether a particular circumstance
should be regarded as a mitigating one.
The Defence has failed to demonstrate
that the Trial Chamber erred in the exercise of its discretion in this regard,
and
the ground of appeal is dismissed.
C. The Appeals Chamber�s Considerations
The Appeals Chamber decides that the sentence must be adjusted due to the
fact that it has found Radislav Krstic responsible
as an aider and abettor
to genocide and to murders as a violation of the laws or customs of war committed
between 13 and
19 July 1995, instead of as a co-perpetrator, as found by the
Trial Chamber. In accordance with its power to do so without remitting
the
matter to the Trial Chamber,[429] the
Appeals Chamber proceeds with the adjustment of Krstic�s sentence in light
of its findings, and in accordance with
the requirements of the Statute and
the Rules.
As correctly stated by the Trial Chamber,[430]
the general sentencing principles applicable in this case include the following:
(i) the gravity of the crime(s) alleged;[431]
(ii) the general practice of prison sentences in the courts of the former
Yugoslavia ;[432] (iii) the individual
circumstances of the convicted person;[433]
and ( iv) any aggravating or mitigating circumstances.[434]
Regarding the gravity of the crimes alleged, as the Appeals Chamber recently
acknowledged in the Vasiljevic case, aiding and abetting is a form
of responsibility which generally warrants lower sentences than responsibility
as a
co-perpetrator. [435] This principle
has also been recognized in the ICTR and in many national jurisdictions.[436]
While Radislav Krstic�s crime is undoubtedly grave, the finding that he lacked
genocidal intent significantly diminishes
his responsibility. The same analysis
applies to the reduction of Krstic�s responsibility for the murders as a violation
of laws or customs of war committed between 13 and 19 July 1995 in Srebrenica.
As such, the revision of Krstic�s conviction
to aiding and abetting these
two crimes merits a considerable reduction of his sentence.
The Appeals Chamber has also concluded that the Trial Chamber erred in
setting aside Radislav Krstic�s convictions for Counts
Three (extermination
as a crime against humanity) and Six (persecution as a crime against humanity)
as impermissibly cumulative
with the conviction for genocide. The Appeals
Chamber concluded, however, that Krstic�s level of responsibility with respect
to these two offences was that of an aider and abettor and not of a principal
perpetrator. While these conclusions may
alter the overall picture of Radislav
Krstic�s criminal conduct, the Prosecution did not seek an increase in sentence
on
the basis of these convictions.[437]
The Appeals Chamber therefore does not take Krstic�s participation in these
crimes into account in determining the sentence
appropriate to the gravity
of his conduct.
As regards the general sentencing practice of the courts of the former
Yugoslavia, the Appeals Chamber has already explained
that the Tribunal is
not bound by such practice, and may, if the interests of justice so merit,
impose a greater or lesser
sentence than would have been imposed under the
legal regime of the former Yugoslavia. In the above discussion of this factor,
the Appeals Chamber has considered the sentencing practice of the courts of
the former Yugoslavia applicable in this case,
and has taken those practices
into account. In particular, the sentence of a person who aided a principal
perpetrator to
commit a crime can be reduced to a sentence less than the one
given to the principal perpetrator.[438]
The Trial Chamber has considered the individual circumstances of Radislav
Krstic, including aggravating and mitigating circumstances.
The Defence submits
that the Trial Chamber erred in not according any weight in sentencing to
Krstic�s poor health, his
good personal character, his clear record to date,[439]
and his cooperation with the Tribunal and contribution to reconciliation in
the former Yugoslavia.[440] The Appeals
Chamber adopts the Trial Chamber�s findings as to these factors, and concludes
that they do not constitute
mitigating circumstances in the context of this
case. The Appeals Chamber also concludes that no aggravating factors are present
in this case.
The Appeals Chamber believes, however, that four further factors must be
accounted for in mitigation of Krstic�s sentence, namely:
(i) the nature of
his provision of the Drina Corps assets and resources; (ii) the fact that
he had only recently assumed
command of the Corps during combat operations;
(iii) the fact that he was present in and around the Potocari for at most
two hours; and (iv) his written order to treat Muslims humanely.
First, while Radislav Krstic made a substantial contribution to the realization
of the genocidal plan and to the murder of the
Bosnian Muslims of Srebrenica,
his actual involvement in facilitating the use of Drina Corps personnel and
assets under
his command was a limited one. Second, while the Appeals Chamber
has found that� Krstic assumed command of the Drina Corps on
13 July 1995,
it accepts that the recent nature of his appointment, coupled with his preoccupation
with conducting ongoing
combat operations in the region around Zepa, meant
that his personal impact on the events described was further limited. Third,
Krstic was present in and around the Potocari compound during the afternoon
of 12 July 1995 for at most two hours,[441]
a period which, the Appeals Chamber finds, is sufficiently brief so as to
justify a mitigation of sentence.[442]
Finally, as discussed above,[443] Radislav
Krstic made efforts to ensure the safety of the Bosnian Muslim civilians transported
out of Potocari, he issued
an order that no harm befall civilians while guaranteeing
their safe transportation out of the Srebrenica area, and he showed
similar
concerns for the Bosnian Muslim civilians during the Zepa campaign. Krstic�s
personal integrity as a serious career
military officer who would ordinarily
not have been associated with such a plan at all, is also a factor in mitigation.
The Appeals Chamber notes that the Prosecution requested the imposition
of a minimum sentence of 30 years� imprisonment.[444]
As the Appeals Chamber explained in the Tadic Judgement in Sentencing
Appeals, the decision whether to impose a minimum sentence is within the sentencing
Chamber�s discretion.[445] The imposition
of a minimum sentence is ordered only rarely. In the absence of compelling
reasons from the Prosecution
as to why it should do so, the Appeals Chamber
does not believe that a minimum sentence is appropriate in this case.
The Appeals Chamber finds that Radislav Krstic is responsible for very
serious violations of international humanitarian law.
The crime of genocide,
in particular, is universally viewed as an especially grievous and reprehensible
violation. In the
light of the circumstances of this case, as well as the
nature of the grave crimes Radislav Krstic has aided and abetted or
committed,
the Appeals Chamber, taking into account the principle of proportionality,
considers that the sentence imposed
by the Trial Chamber should be reduced
to 35 years.
VII. 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 26 and 27 November 2003;
SITTING in open session;
SETS ASIDE, Judge Shahabuddeen dissenting, Radislav Krstic�s conviction
as a participant in a joint criminal enterprise to commit genocide
(Count
1), and FINDS, Judge Shahabuddeen dissenting, Radislav Krstic guilty
of aiding and abetting genocide;
RESOLVES that the Trial Chamber incorrectly disallowed Radislav Krstic�s
convictions as a participant in extermination and persecution
(Counts 3 and
6) committed between 13 and 19 July 1995, but that his level of responsibility
was that of an aider and abettor
in extermination and persecution as crimes
against humanity;
SETS ASIDE, Judge Shahabuddeen dissenting, Radislav Krstic�s conviction
as a participant in murder under Article�3 (Count 5) committed
between 13
and 19 July 1995, and FINDS, Judge Shahabuddeen dissenting, Radislav
Krstic guilty of aiding and abetting murder as a violation of the laws or
customs
of war;
AFFIRMS Radislav Krstic�s convictions as a participant in murder
as a violation of the laws or customs of war (Count 5) and in persecution
(Count 6) committed between 10 and 13 July 1995 in Potocari;
DISMISSES the Defence and the Prosecution appeals concerning Radislav
Krstic�s convictions in all other respects;
DISMISSES the Defence and the Prosecution appeals against Radislav
Krstic�s sentence and IMPOSES a new sentence, taking into account Radislav
Krstic�s responsibility as established on appeal;
SENTENCES Radislav Krstic to 35 years� imprisonment to run as of
this day, subject to credit being given under Rule 101(C) of the Rules
of
Procedure and Evidence for the period Radislav Krstic has already spent in
detention, that is from 3 December 1998 to
the present day;
ORDERS, in accordance with Rules 103(C) and 107 of the Rules of Procedure
and Evidence, that Radislav Krstic is to remain in the custody
of the Tribunal
pending the finalisation of arrangements for his transfer to the State where
his sentence will be served.
Done in English and French, the English text being authoritative.
______________
Judge Theodor Meron Presiding
______________
Judge Fausto Pocar
______________
Judge Mohamed Shahabuddeen
______________
Judge Mehmet G�ney
______________
Judge Wolfgang Schomburg
Judge Mohamed Shahabuddeen appends a partial dissenting opinion.
Dated this 19th day of April 2004
At The Hague,
The Netherlands.
[SEAL OF THE TRIBUNAL]
VIII. PARTIAL DISSENTING OPINION OF JUDGE SHAHABUDDEEN
A. Preliminary
1. In this appeal, counsel for General Krstic told the Appeals Chamber:
�We agree with the introductory comments of the Trial
Chamber [that the]�events
of the nine days from 10th to 19th July 1995 in Srebrenica defy description
in their horror and
their implications for humankind�s capacity to revert
to acts of brutality under the stresses of conflict.��[446]
Recognising that horror, the Trial Chamber said, �in the words of Nuremberg
Prosecutor Telford Taylor,� that it was �important
that these incredible events
be established by clear and public proof, so that no one can ever doubt that
they were fact
and not fable ��.[447]
Accordingly, the Trial Chamber took the view that it was �imperative to document
these �incredible events� in detail.�[448]
The documentation does not defeat the expectation.
2. At the end of its task, the Trial Chamber found that Srebrenica was a genocide
and that General Krstic (�appellant�) had criminal
responsibility for it. The
Appeals Chamber agrees with that finding, and I respectfully concur, as I do
on many other aspects.
However, the Appeals Chamber disagrees with the Trial
Chamber as to the level of the appellant�s criminal responsibility. Whereas
the Trial Chamber considered that the appellant�s criminal responsibility was
that of a �principal perpetrator�[449]
of genocide, the Appeals Chamber considers that the level should be that of
an aider and abettor. I agree with the Trial Chamber.
3. On some aspects of cumulation of convictions I have a doubt and I express
this later. But on sentence, I am in agreement
with the Appeals Chamber. Thus,
on the practical outcome, my position is the same as that of the Appeals Chamber.
But,
in the circumstances, I should like to explain how I have got there.
In order to deal with the central question as to the level
of the appellant�s
criminal responsibility, it will be necessary to recapitulate the main facts.
B. The background
4. The President of Republika Srpska was Mr. Radovan Karadzic. He was also
the supreme commander of the Bosnian Serb Army (�VRS�).
Subject to that control,
General Mladic was Commander of all VRS forces. The army was divided into
corps. One corps was
the Drina Corps. The killings occurred within the area
of responsibility of the Drina Corps.
5. The Drina Corps was earlier commanded by General Zivanovic, with the
appellant as the Chief of Staff and Deputy Commander
� then Colonel, later
General-Major, and still later (after these events) Lieutenant Colonel-General.
The evidence of Mr.
Deronjic (a witness called by the Appeals Chamber) showed
that President Karadzic came to have reservations about the efficiency
of
General Zivanovic. In consequence, President Karadzic replaced General Zivanovic
with the appellant. The Trial Chamber
found that the appellant became the
de facto Commander of the Drina Corps from the evening of 13 July 1995
onwards and the de jure Commander from 15 July 1995 onwards.[450]
6. The killings occurred in July 1995. One way or another they spanned a
period during which the appellant had responsibility
at first as Chief of
Staff and Deputy Commander of the Drina Corps and later as its Commander.
Moreover, the particular
position which he held in the military hierarchy
is not decisive on the question whether he was a party to a joint criminal
enterprise to commit genocide, the charge which is of relevance here; the
particular hierarchical position is only relevant
in so far as it may assist
in determining whether he was in a position to make a significant contribution
to the working
of the enterprise and whether therefore he was a party to it.
7. The Trial Chamber found that �the Drina Corps Command must have known
about the plan to execute the Bosnian Muslim men as
of the evening of 13 July
1995.�[451] That plan has to be
understood against a background which went back in time.
8. On 16 April 1993, the Security Council resolved that �all parties and
others treat Srebrenica and its surroundings as a �safe
area� that should
be free from armed attack or any other hostile act.�[452]
At the same time, the Security Council created two other protected enclaves,
namely, Zepa and Gorazde.[453]
The VRS was all around; the Bosnian Serbs desired to create a state for themselves
and saw the Muslim population of these
three places as in the way.
9. In April-May 1993, the commanders of the opposing military forces signed
a Srebrenica �safe area� agreement. The Trial Chamber
found that �[f]rom the
outset, both parties to the conflict violated the �safe area� agreement,�[454]
but that, �[d]espite these violations of the �safe area� agreement by both sides
to the conflict, a two-year period of relative
stability followed the establishment
of the enclave, although the prevailing conditions for the inhabitants of Srebrenica
were
far from ideal.�[455] Between
March 1995 and July 1995 the situation changed.
10. On 8 March 1995, President Karadzic issued a Directive to the VRS concerning
the strategy of the VRS forces in the Srebrenica
area. As set out in the judgment
of the Trial Chamber and as recalled in paragraph 88 of the judgment of the
Appeals Chamber,
the Directive, known as �Directive No. 7�, specified that
the VRS was to -
complete the physical separation of Srebrenica from Zepa
as soon as possible, preventing even communication between individuals
in
the two enclaves. By planned and well- thought out combat operations, create
an unbearable situation of total insecurity
with no hope of further survival
or life for the inhabitants of Srebrenica.[456]
11. As indicated by the Trial Chamber in paragraph 28 of its judgment and
by the Appeals Chamber in paragraph 89 of its judgment,
the Directive called
for the blocking of aid convoys, making the Muslim population �dependent on
our good will while at
the same time avoiding condemnation by the international
community and international public opinion.� Careful as was the articulation,
that strategy was obviously designed to promote the policy to �create an unbearable
situation of total insecurity with
no hope of further survival or life for
the inhabitants of Srebrenica.� The first fruits of the policy were noted
by the
Trial Chamber thus:
Just as envisaged by this decree, by mid 1995, the humanitarian
situation of the Bosnian Muslim civilians and military personnel
in the enclave
was catastrophic. In early July 1995, a series of reports issued by the 28th
Division reflected the urgent
pleas of the ABiH forces [the opposing army]
in the enclave for the humanitarian corridor to be deblocked and, when this
failed, the tragedy of civilians dying from starvation.[457]
The appellant being a senior military officer in the VRS and particularly
concerned with Srebrenica, it may be inferred that Directive
No. 7 duly came
to his notice. Also, it is to be taken that he understood the prescribed object
of the stipulated �combat operations.�
12. A little later, on 31 March 1995, the VRS Main Staff issued Directive
No. 7. 1. This Directive showed that it was issued
�on the basis of Directive
No. 7�, which had been previously issued by President Karadzic. According
to the Trial Chamber,
the new Directive ordered the Drina Corps, inter
alia, to conduct �active combat operations � around the enclaves.�[458]
13. Then, by a letter of 9 July 1995, the Bosnian Serb leadership ordered
the VRS to take Srebrenica;[459]
the Trial Chamber found that the letter �came with instructions to deliver
�personally� to General Krstic.�[460]
A reasonable inference is that the appellant understood that this order was
intended to implement the earlier policy as
set out in Directive No. 7 and
advanced by Directive No. 7.1.
C. The central policy to commit genocide
14. As previously mentioned, Mr. Deronjic was called by the Appeals Chamber.
He testified, inter alia, to a conversation which he had with the Bosnian
Serb leadership on 8 or 9 July 1995. The Appeals Chamber found that �Mr. Deronjic
gave some evidence of an intention on the part of the Bosnian Serb leadership
prior to 13 July 1995 to kill the Bosnian
Muslim civilians in Srebrenica should
military operations in that region be successful.�[461]
The Appeals Chamber gave no details of the conversation or as to the identity
of Mr. Deronjic�s interlocutor. It found
that Mr. Deronjic�s evidence did
not help the prosecution because he �gave no evidence linking Radislav Krstic
to a genocidal
plan or indicating that Krstic was aware of that intention
on the part of the Bosnian Serb leadership.�[462]
15. In any event, the Appeals Chamber also found that it could not rely
on Mr. Deronjic�s testimony, speaking of �discrepancies
in the evidence given
by� him and of �ambiguities surrounding some of the statements he made.� These
�discrepancies� and
�ambiguities � have not been particularized. The witness
was speaking � and he was the only one to do so - of the origins of
a policy
which was of importance to the case. With respect, I am not persuaded that
a basis has been satisfactorily laid
for excluding the substance of his testimony
on that point. His testimony was accepted by the Appeals Chamber on a matter
favouring the appellant, as shown in paragraph 119 of its judgment and paragraph
25 below. So it is not the case that Mr.
Deronjic�s testimony was wholly discredited.
A court may of course accept evidence in part and reject it in part. But I
am without a basis for sharing the Appeals Chamber�s conclusion that Mr. Deronjic�s
testimony was to be rejected on a point
of significance.
16. The Bosnian Serb leadership indicated to Mr. Deronjic that it would
communicate further through a messenger. A messenger,
in the person of Colonel
Beara, duly appeared on 12 July 1995; he was instrumental in commencing the
killings.
17. The letter written by General Tolmir on 9 July 1995 (already referred
to) conveyed a declaration by the Bosnian Serb leadership
that the Geneva
Conventions were to be adhered to. However, Mr. Deronjic testified that he
informed the leadership on more
than one occasion that killings were going
on.[463] There is no evidence
of any objection; it may be inferred that there was none. That must be taken
into account in estimating
the purpose of the declaration issued by the leadership
and conveyed in General Tolmir�s letter. As was indicated in Directive
No.
7, it was important to avoid �the condemnation of the international community
and international public opinion.�
D. Whether the appellant knew of the intent to commit
genocide
18. Consistent with the central policy as set out in Directive No. 7 is
General Mladic�s statement at the second of three meetings
held at Hotel Fontana
on 11-12 July 1995 that he wanted a clear position whether the Bosnian Muslims
in Srebrenica wanted
to �survive, stay, or disappear.�[464]
So too with his ultimatum at that meeting to Mr Mandzic, �an unofficial Bosnian
Muslim representative who was plucked from
the crowd at Potocari,�[465]
that the latter should �bring people who can secure the surrender of weapons
and save your people from destruction.�[466]
The appellant was at that meeting. At the third meeting, he was sitting at
the side of General Mladic when the latter said
that the Srebrenica Muslims
�can either survive or disappear.�[467]
With apparent acceptance, the Trial Chamber noted that two witnesses �testified
before the Trial Chamber that the clear
message conveyed by General Mladic
in this meeting was that the Bosnian Muslim refugees could only survive by
leaving Srebrenica.�[468]
19. The Appeals Chamber does not seem to be taking the same position as
the Trial Chamber on whether the appellant appreciated
the import of what
General Mladic was saying. Referring to General Mladic�s announcement �that
the survival of the population
depended upon the complete surrender of the
ABiH� and noting the presence at the meetings of UNPROFOR leaders and foreign
media, the Appeals Chamber says that there �was no evidence to suggest that
at this time Radislav Krstic knew about the intent
on the part of General
Mladic to execute the Bosnian Muslim civilians who were to be transferred.�[469]
So, General Mladic�s intent to execute was not in doubt; the question was
whether the appellant knew of it.
20. Paragraph 341 of the judgment of the Trial Chamber, to which reference
is made in the judgment of the Appeals Chamber, referred
to the hearing of
the death cries of a slaughtered pig (offensive to Bosnian Muslims) and to
the placing of a broken signboard
from the Srebrenica Town Hall in front of
Mr Mandzic at the second Hotel Fontana meeting. The Trial Chamber stated that
these things �could hardly be ignored by anyone at the meeting. Most importantly,
General Krstic was present when General Mladic
announced that the survival
of the Bosnian Muslim population was linked to the complete surrender of the
ABiH.� It followed
that, if the ABiH did not surrender, the Bosnian Muslim
population would not survive. The Trial Chamber correctly added that,
as a
result of the Hotel Fontana meetings, the appellant �was put on notice that
the survival of the Bosnian Muslim population
was in question following the
take-over of Srebrenica.�[470]
21. The submission of counsel for the appellant to the Appeals Chamber was
that General Mladic �said words to the effect, you
know, �You can either face
death or you can go.��[471]
Later counsel added : �But at some point I think the Trial Chamber � again,
we � we have to accept this. We wish we didn�t,
but I think we do under the
Rules of the Chamber and under the Rules of this Tribunal - when General Mladic
started to
speak, he made it unfortunately clear that there was no real true
choice for the civilians to leave the area.�[472]
The appellant was present when General Mladic spoke; he was General Mladic�s
lieutenant so far as concerned Srebrenica
and the surrounding area. It is
unarguable, particularly against the combat policy set out in Directive No.
7, that the
appellant did not know what was afoot.
22. Without doubt, General Mladic was a forceful figure. However, in my
view this does not affect the question whether the appellant
knew of the intention
of his immediate commander, namely, General Mladic. Moreover, as the Trial
Chamber found, there were
numerous opportunities for oral contact between
General Mladic and the appellant, so that, as the Trial Chamber said, �If
General Mladic knew about the killings, it would be natural for General Krstic
to know as well.�[473] This
is not fanciful speculation or guilty by association, but a reasonable inference
which the Trial Chamber was entitled
to draw from the material before it.
The appellant knew of the intent to kill and, in the circumstances, to commit
genocide.
E. Whether the appellant shared the intent to commit
genocide
23. Though of the view that at the time of the Hotel Fontana meetings the
appellant did not know of the intent to execute,[474]
the Appeals Chamber proceeds on view that later � on 15 July 1995[475]
- the appellant did come to know of that intent while the executions were
in progress. However, contrary to the finding
of the Trial Chamber, the Appeals
Chamber holds that the appellant did not share that intent. I consider that
the Trial
Chamber was right in holding that the appellant both knew of and
shared the intent to kill and that he did so before 15 July
1995. I shall
refer to four pieces of evidence.
1. The Kravica Farm massacre
24. The first piece of evidence relates to the case of Colonel Borovcanin.
Admittedly, the colonel�s troops had carried out
a mass murder at Kravica
Farm at around 1800 hours on 13 July 1995. Some 1000 to 1,500 unarmed civilian
prisoners were
in a warehouse ; they were practically all killed;[476]
there were few survivors.[477]
The evidence shows that some two and a half hours later, at 2040 hours, there
was a telephone conversation between Colonel
Borovcanin and the appellant.
In the conversation, the appellant asked, �How�s it going?� Borovcanin replied,
�It�s going
well�. The appellant responded, �Don�t tell me you have problems.�
To which the answer was, �I don�t, I don�t.�[478]
The conversation ended with the appellant saying, �OK, we�ll be in touch.�
25. The Appeals Chamber states that the �intercepted conversation between
Colonel Borovcanin and Radislav Krstic is too oblique
to support an inference
that the conversation was a report by Colonel Borovcanin about a successfully
completed execution
of Muslims at the Kravica Farm on 13 July.�[479]
In support of its view that the conversation was �too oblique�, the Appeals
Chamber refers to the evidence of Mr. Deronjic
�that the execution at Kravica
Farm was not planned, but was instead a spontaneous reprisal following a clash
between the
Muslim prisoners and the guards. If so, then the initiative for
the massacre could have resided with the camp authorities rather
than with
the higher military commanders such as Krstic.�[480]
26. But the question is not whether the appellant took the �initiative for
the massacre �, but whether he shared the intent
with which the �massacre�
was committed. However the event may be explained, it cannot be justified:
the Appeals Chamber
itself calls it a �massacre�. It is not conceivable that
Borovcanin was not reporting to the appellant about so momentous an
event.
It may be inferred from the record of the conversation that the appellant
did not object. Even if the evidence does
not go all the way to establish
that the appellant was himself a party to the massacre, it strongly suggests
that the massacre
accorded with his understanding of a general policy to execute.
In other words, he shared the policy.
2. The �distribution� of 3,500 �parcels�
27. The second piece of evidence is more to the point. Colonel Beara was
the messenger from the Bosnian Serb leadership. The
Appeals Chamber refers
to him as having been �closely involved in the killings.�[481]
Indeed, he was principally instrumental in the implementation of the execution
policy. An intercept of 15 July 1995 recorded
a conversation between him
and the appellant. The intercept read as follows:[482]
B: General, FURTULA didn�t carry out the boss�s order.
K: Listen, he ordered him to lead out a tank, not a train.
B: But I need 30 men just like it was ordered.
K: Take them from NASTIC or BLAGOJEVIC, I can�t pull anybody out of here
for you.
B: But I don�t have any here. I need them today and I�ll give them back
tonight. Krle, you have to understand. I can�t explain
it like this to you.
K: I�ll disturb everything on this axis if I pull them out, and a lot depends
on him.
B: I can�t do anything without 15 to 30 men with Boban INDIC.
K: Ljubo, this/line/is not secure.
B: I know, I know.
K: I�ll see what I can do, but I�ll disturb a lot. Check down with NASTIC
and BLAGOJEVIC
B: But I don�t have any. If I did, I wouldn�t still be asking for the 3rd
day.
K: Check with BLAGOJEVIC, take his Red Berets.
B: They�re not there, only 4 of them are still there. They took off, fuck
�em, they�re not there any more.
K: I�ll see what I can do.
B: Check it out and have them go to Drago�s.
K: I can�t guarantee anything.
B: Krle, I don�t know what to do anymore.
K: Ljubo, then take those MUP/Ministry of Interior/guys from up there.
B: No, they won�t do anything, I talked to them. There�s no other solution
but for those 15 to 30 men with INDIC. That were
supposed to arrive on the
13th but didn�t.
K: Ljubo, you have to understand me, you guys fucked me up so much.
B: I understand, but you have to understand me too, had this been done then,
we wouldn�t be arguing over it now.
K: Fuck it, now I�ll be the one to blame.
B: I don�t know what to do. I mean it, Krle. There are still 3,500 parcels
that I have to distribute and I have no solution.
K: Fuck it, I�ll see what I can do.
28. The meaning of the intercepted conversation is clear. In the disingenuous
coded language used, the reference to �3,500 parcels�
was a reference to 3,500
captured civilians. The reference to �distribute� was a reference to a programme
to kill them.
The Trial Chamber found that. With respect, the Appeals Chamber
is not persuasive when it says, in paragraph 76 of its judgment,
that that
finding is unsupported by anything other than the argument of the prosecution.
It is difficult to imagine much
scope for evidence on the point; the matter
is pre-eminently one of interpretation involving argument. The Appeals Chamber
has not been able to suggest an alternative meaning.
29. What was sought was not a fighting battalion, but only about 15 to 30
men, and then only for some hours. It is not in dispute
that the appellant
knew that he was being asked to provide executioners. And the appellant was
willing to provide them
through his subordinates[483]
Nastic and Blagojevic, if they had spare capacity. So the Trial Chamber correctly
found �that, at the time this conversation
took place on 15 July 1995, General
Krstic knew the executions were occurring and that he undertook to assist
Colonel Beara
in obtaining the necessary personnel to carry them out.�[484]
30. Referring to the conversation, counsel for the appellant accepted before
the Appeals Chamber that the appellant �did know
about the killings�, but
he contended that the appellant �really never was part of the plan to kill
the men.�[485] The Appeals Chamber,
in substance, agrees with the submission of counsel for the appellant. It
considers that the appellant�s
�statements to Colonel Beara that he �will
see what he can do� cannot support the weight of reliance the Trial Chamber
placed upon it. Rather than a firm promise of help, the statements could have
been a refusal to commit, an effort by Krstic
to end the conversation without
saying a firm �no� but also without assuming an unambiguous obligation to
help.�[486] The Appeals Chamber
adds that �the fact that Krstic requested that men be taken from his subordinates
may support a finding
of knowledge that executions of Bosnian Muslims were
taking place, but it cannot establish that Radislav Krstic shared the intent
to commit genocide.�[487] There
are two difficulties with these views.
31. First, before the Trial Chamber the appellant denied that this conversation
ever took place;[488] by contrast,
his attack on appeal was directed to the meaning of the conversation, his
contention, as the Appeals Chamber
observed, being that his statements were
meant as a discreet refusal of the assistance sought.[489]
But the implication of the new contention is that he now accepts that the
conversation did take place. The denial had been
made precisely because the
appellant correctly recognised the evidential significance of the conversation.
Faced with the
difficulty of denying the undeniable, namely, that the conversation
took place, the appellant has changed tactic � he now accepts
that the conversation
took place but seeks to place an exculpatory interpretation on it.
32. Second, before concerning itself with the appellant�s later words �
�I�ll see what I can do� - the Appeals Chamber might
pause a little more over
his earlier words, �Take them from Nastic or Blagojevic, I can�t pull anybody
out of here for
you.� Then there are his subsequent words, �Check with BLAGOJEVIC,
take his Red Berets.� Those words show that, if the men had
been available
from the appellant�s �subordinates�[490]
(Nastic and Blagojevic ), they would in fact have been assigned by the appellant
to help out with the executions. It happened
that the men were not available
from the subordinates, but of this the appellant himself did not know. That
was the only
reason why the men were not used as executioners. Thus, the appellant�s
state of mind was one of readiness to provide some of
the actual executioners.
To prove that, it is not necessary to show that the men were in fact available
from the subordinates
whom the appellant indicated or that they actually stood
in the firing line.
33. An undertaking to provide executioners was not merely the provision
of substantial assistance in the carrying out of genocide
by another person,
if that other person proceeded to realize his known intent to perpetrate genocide,
so as to make the
person providing the executioners liable only as an aider
and abettor: it signified a sharing of the intent of that other person
to
commit genocide, and not mere knowledge of that intent. Accordingly, such
an undertaking amounted to evidence of participation
in the crime of genocide
so as to make the genocide a crime committed by the person undertaking to
provide executioners.
3. The transportation of women and children
34. The third piece of evidence concerns the appellant�s admitted role in
organising the transfer of women, children and the
elderly by bus out of Srebrenica.
In the words of his counsel, �There was unchallenged evidence that General
Krstic had
organised the transfer of women, children and the elderly from
the Srebrenica area so that they would not be affected by the coming
holocaust.�[491] Thus, according
to his counsel, the appellant recognised that a �coming holocaust � awaited
those who had not been transferred.
The transfer and the holocaust combined
to constitute one single act of genocide. The Appeals Chamber saw this when
it
said :[492]
The decision by Bosnian Serb forces to transfer the women,
children and elderly within their control to other areas of Muslim-controlled
Bosnia could be consistent with the Defence argument. This evidence, however,
is also susceptible of an alternative interpretation.
As the Trial Chamber
explained, forcible transfer could be an additional means by which to ensure
the physical destruction
of the Bosnian Muslim community in Srebrenica. The
transfer completed the removal of all Bosnian Muslims from Srebrenica, thereby
eliminating even the residual possibility that the Muslim community in the
area could reconstitute itself. The decision
not to kill the women or children
may be explained by the Bosnian Serbs� sensitivity to public opinion. In contrast
to
the killing of the captured military men, such an action could not easily
be kept secret, or disguised as a military operation,
and so carried an increased
risk of attracting international censure.
The Trial Chamber � as the best assessor of the evidence
presented at trial � was entitled to conclude that the evidence of the
transfer
supported its finding that members of the VRS Main Staff intended to destroy
the Bosnian Muslims in Srebrenica.
The fact that the forcible transfer does
not constitute in and of itself a genocidal act does not preclude a Trial
Chamber
from relying on it as evidence of the intentions of members of the
VRS Main Staff. The genocidal intent may be inferred, among
other facts, from
evidence of �other culpable acts systematically directed against the same
group.�
35. Thus, standing alone, forcible transfer is not genocide. But in this
case the transfer did not stand alone, and that indeed
is the basis on which
the Appeals Chamber rejected the defence argument that it showed that there
was no genocide. It was
part � an integral part � of one single scheme to
commit genocide, involving killings, forcible transfer and destruction of
homes. In particular, it showed that the intent with which the killings were
done was indeed to destroy the Srebrenica
part of the Bosnian Muslim group.
In my view, the judgment of the Appeals Chamber has to be understood as affirming
that,
by taking on the role of chief executor of the policy of forcible transfer
- an inseparable element of the genocide - the appellant
shared the intent
of the Main Staff to commit the crime of genocide.
36. The indictment (in paragraph 24.4 relating to counts 1 and 2 concerning
genocide and complicity to commit genocide respectively)
did aver that the �wide-scale
and organized killing of Bosnian men � included[494]
[the fact that the]� VRS military personnel, under the command of Radislav Krstic,
transported the Bosnian women and children,
who had been separated from male
members of their families in Potocari to an area near to Tisca village. Most
of the Bosnian
women and children driven to Tisca were permitted to cross into
Bosnian Muslim territory.� Thus, it was the contention of the
prosecution that
the �wide-scale and organized killing of Bosnian men � included� the transportation
of women and children.
That contention was duly notified by the prosecution
to the appellant in the text of the indictment; the contention was proved.
4. Use of personnel and resources under the control
of the appellant
37. The Appeals Chamber accepts that the appellant had knowledge of the
use of personnel and resources under his command for
the purposes of the genocide.[495]
It mentioned the use of Drina Corps personnel to escort prisoners to execution
sites, the use of Zvornik Brigade equipment
for burial of victims, the use
of Drina Corps fuel for the transport of prisoners to execution sites, the
use of units
of the Krajina Brigade (operating under the command of the Zvornik
Brigade) as executioners.[496]
All these things were under the appellant�s control. The Main Staff could
call upon these resources, but the appellant
knew that the Main Staff also
depended on his cooperation.[497]
As the Appeals Chamber observed, the appellant �knew that by allowing Drina
Corps resources to be used he was making a substantial contribution to the
execution of the Bosnian Muslim prisoners,�[498]
and �permitted the Main Staff to use personnel and resources under
his command to facilitate them.�[499]
38. Referring to these matters, the Appeals Chamber states that the �Trial
Chamber inferred the genocidal intent of the accused
from his knowledge of
the executions and his knowledge of the use of personnel and resources under
his command to assist
in those executions. However, knowledge on the part
of Radislav Krstic, without more, is insufficient to support the further
inference
of genocidal intent on his part.�[500]
The line between knowledge of intent and a sharing of intent can be a subtle
one. It turns on an appreciation of the evidence.
In accordance with settled
principles regulating the appeal process, the appreciation should be left
to the Trial Chamber
� even in the case of a stringent test. A stringent test
does not empower the Appeals Chamber to step in where otherwise it
could not.
This is so except in cases of error - often qualified as having to be clear.
I am not able to see any error
here.
39. Having agreed with the Trial Chamber in rejecting the appellant�s claim
that there was a parallel line of authority from
which he was totally excluded,
having recognized that the personnel and resources in question were under
the appellant�s
command, having acknowledged that the appellant knew that
his personnel and resources were being used to carry out the executions,
having
spoken of the appellant �allowing � his resources to be so used and of such
use being �permitted� by him, the Appeals
Chamber was not in a good position
to reject the Trial Chamber�s finding that the appellant not only had knowledge
of the
executions but that he also shared the intent of the executions.
5. Conclusion as to sharing of intent
40. Counsel for the appellant conceded that �the Trial Chamber was warranted
in finding that everything from that point on (the
second Hotel Fontana meeting
on 11 July 1995( constituted a joint criminal enterprise, at least in terms
of who participated
to deport the civilians.�[501]
The concession was rightly made, but I am not persuaded that it can be limited
to deportation. There is no reason to disagree
with the Trial Chamber in finding
�beyond reasonable doubt that General Krstic participated in a joint criminal
enterprise
[502] to kill the
Bosnian Muslim military -aged men from Srebrenica from the evening of 13 July
1995 onward.�[503] Having shared
the intent, that fixed him with criminal responsibility for genocide as a
perpetrator, and the Trial Chamber
so found. By contrast, the Appeals Chamber
considers that his level of criminal responsibility was that of an aider and
abettor. To this difference of opinion I shall return.
F. Whether there was genocide
1. Preliminary
41. Meanwhile, it is proposed to address a submission by counsel for the
appellant that, in law, there was no genocide. The
challenge turns on the
Genocide Convention of 1948, which, it is agreed, has the status of customary
international law.
The provisions of articles II and III of the Convention
appear in paragraphs 2 and 3 respectively of article 4 of the Statute,
which
reads as follows:
Article 4
Genocide
1. The International Tribunal shall have the power to prosecute
persons committing genocide as defined in paragraph 2 of this
article or of
committing any of the other acts enumerated in paragraph 3 of this article.
2. Genocide means any of the following acts committed with
intent to destroy, in whole or in part, a national, ethnical, racial
or religious
group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of
the group;
(c) Deliberately inflicting on the group conditions of
life calculated to bring about its physical destruction in whole or
in part;
(d) Imposing measures intended to prevent births within
the group;
(e) Forcibly transferring children of the group to another
group.
3. The following acts shall be punishable:
(a) Genocide;
(b) Conspiracy to commit genocide;
(c) Direct and public incitement to commit genocide;
(d) Attempt to commit genocide;
(e) Complicity in genocide.
42. On the basis of these provisions, three questions have been raised.
They have been considered in the judgment of the Appeals
Chamber. I agree
with the outcome of the judgment on the points in question, but I should like
to give my views.
2. �Part of a part� of a group
43. The first question was raised by counsel for the appellant under the
rubric �part of a part.�[504]
I understand counsel�s argument this way: The Trial Chamber found that the
�group� for genocide purposes was the Bosnian
Muslims, and that a �part� of
that group was represented by the Bosnian Muslim community of Srebrenica.[505]
Having so found, the Trial Chamber then �
measured the killing of military age men against the Bosnian
Muslim community at Srebrenica and found it to be substantial. But,
in doing
so, it incorrectly diluted the genocide formula by measuring a part (military
age men) against another part (of
Srebrenica) and finding it substantial.
The Trial Chamber never employed the correct formula of measuring the part
intended
to be destroyed (military age men of Srebrenica) against the group
(Bosnian Muslims).[506]
Thus, counsel for the appellant submits that the task of the Trial Chamber
was to determine whether the men killed constituted
a �part� of the Bosnian
Muslim group as a whole and that, in doing so, it used the wrong yardstick of
measurement.
44. I respectfully agree with the Appeals Chamber that the �Defence misunderstands
the Trial Chamber�s analysis.�[507]
The Trial Chamber found � and this has not been challenged � that the Srebrenica
Muslims were �part� of the Bosnian Muslim
group. Some of them were killed.
The question then was whether those who were killed were killed with intent
to destroy
the Srebrenica �part� of the group. The Trial Chamber answered
the question in the affirmative, using the killings, together
with certain
other matters, as evidence of that intent. Certainly, those who were killed
belonged to the Srebrenica part of the Bosnian Muslim group, but no
question really arose as to whether they constituted �part� of any group
within the meaning of the chapeau of article 4 2 of the Statute; it was
unnecessary to consider any such question. Accordingly also, no question arose
as to the correct yardstick to be
used to determine whether those killed constituted
a �part� of any group.
3. Whether intent has to be to cause the physical
or biological destruction of the group
45. Second, counsel for the appellant submits that an intent to destroy
was inconsistent with the fact that women and children
(including young males)
were transported by the attacking Bosnian Serb forces to Muslim-held territory.
Underlying the
submission is the proposition, stressed by counsel, that the
intent with which an act listed in article 4 2 of the Statute
(�listed act�)
is done always has to be to cause the physical or biological destruction of
the group in whole or in part,
so that an inconsistency arises if the intent
is in fact to allow a substantial number of members of the group to survive.
46. The Appeals Chamber accepted the fundamental contention of counsel for
the appellant that the intent had to be to destroy
physically or biologically[508]
the Srebrenica part of the Bosnian Muslim group.[509]
That being so, an intent to allow a substantial number of Srebrenican Muslims
to survive meant that there was no intent
to destroy the Srebrenica part of
the group physically. As the Appeals Chamber noted, �The decision by Bosnian
Serb forces
to transfer the women, children and elderly within their control
to other areas of Muslim-controlled Bosnia could be consistent
with the Defence
argument.�[510] Therefore, the
appeal would have to be allowed if the transfer was unqualified. But, for
reasons showing that it was materially
qualified, the appeal on the point
was dismissed.
47. I agree with the dismissal. If the proposition of counsel for the appellant
is right, then, for the reasons given by the
Trial Chamber and by the Appeals
Chamber, I consider that the alleged requirement for proof of intent to destroy
the group
physically or biologically was met by the disastrous consequences
for the family structures on which the Srebrenica part of
the Bosnian Muslim
group was based. The Trial Chamber was correct in finding that the Bosnian
Serb forces knew that their
activities �would inevitably result in the physical
disappearance of the Bosnian Muslim population at Srebrenica.�[511]
But I do not think the proposition of counsel for the appellant is right.
These are my reasons.
48. The proposition that the intended destruction must always be physical
or biological is supported by much in the literature.
However, the proposition
overlooks a distinction between the nature of the listed �acts� and the �intent�
with which they
are done. From their nature, the listed (or initial) acts
must indeed take a physical or biological form, but the accompanying
intent,
by those acts, to destroy the group in whole or in part need not always lead
to a destruction of the same character.[512]
There are exceptions. Article 4 2 (c) of the Statute speaks of �deliberately
inflicting on the group conditions of life
calculated to bring about its physical
destruction in whole or in part,� and an intent to cause physical or biological
destruction of the group in whole or in part is also implied in the case of
article 4 2 (d) proscribing �measures intended to
prevent births within the
group.� However, a contrario, it would seem that, in other cases,
the Statute itself does not require an intent to cause physical or biological
destruction
of the group in whole or in part.
49. The a contrario position applies in relation to article 4 2 (a)
of the Statute concerned with �killing members of the group,� which was involved
in this case. Of course those who were killed were destroyed physically. But
that is not the question. The question is
whether, to prove genocide, it was
necessary to show that the intent with which they were killed was to cause
the physical
or biological destruction of the Srebrenica part of the Bosnian
Muslim group. The stress placed in the literature on the need
for physical
or biological destruction implies, correctly, that a group can be destroyed
in non-physical or non-biological
ways. It is not apparent why an intent to
destroy a group in a non-physical or non-biological way should be outside
the
ordinary reach of the Convention on which the Statute is based, provided
that that intent attached to a listed act, this being
of a physical or biological
nature.
50. Counsel for the appellant correctly recognised that the attack is directed
to the existence of the group; in his words,
�the principle (is( that genocide
is not a crime against individuals; it is a crime against human groups.�[513]
It is the group which is protected. A group is constituted by characteristics
� often intangible - binding together a collection
of people as a social unit.
If those characteristics have been destroyed in pursuance of the intent with
which a listed
act of a physical or biological nature was done, it is not
convincing to say that the destruction, though effectively obliterating
the
group, is not genocide because the obliteration was not physical or biological.
51. Counsel for the appellant understandably relies on views expressed by
the International Law Commission in 1991. Referring
to the standard formula
concerning �intent to destroy�, the Commission stated that �the word �destruction�
� must be taken
only in its material sense, its physical or biological sense.�[514]
The focus there was on whether the term �genocide�, as used in the Convention,
included cultural genocide, the generally
accepted answer being in the negative.
If that does not account for the view expressed by the Commission, then, with
respect,
that view is not correct. The intent certainly has to be to destroy,
but, except for the listed act, there is no reason why
the destruction must
always be physical or biological.
52. The travaux pr�paratoires relating to the Genocide Convention
are of course valuable; they have been and will be consulted with profit.
But I am not
satisfied that there is anything in them which is inconsistent
with this interpretation of the Convention. However, if there
is an inconsistency,
the interpretation of the final text of the Convention is too clear to be
set aside by the travaux pr�paratoires.[515]
On settled principles of construction, there is no need to consult this material,
however interesting it may be.
53. Out of abundant caution, I would make two things clear. First, the question
is whether there was the required intent, not
whether the intent was in fact
realised. Second, the foregoing is not an argument for the recognition of
cultural genocide.
It is established that the mere destruction of the culture
of a group is not genocide : none of the methods listed in article
4 2 of
the Statute need be employed. But there is also need for care. The destruction
of culture may serve evidentially
to confirm an intent, to be gathered from
other circumstances, to destroy the group as such. In this case, the razing
of
the principal mosque confirms an intent to destroy the Srebrenica part
of the Bosnian Muslim group.[516]
54. In sum, I consider that the Statute is to be read to mean that, provided
that there is a listed act (this being physical
or biological), the intent
to destroy the group as a group is capable of being proved by evidence of
an intent to cause
the non-physical destruction of the group in whole or in
part, except in particular cases in which physical destruction is required
by the Statute. This is not an excepted case. Consequently, the fact that,
in this case, women, children and the elderly
were allowed to survive did
not signify an intent which was at variance with that which is required.
4. Whether there was a mere displacement as distinguished
from genocide
55. Third, it was contended for the appellant that what happened in Srebrenica
was a displacement and not a genocide. Displacement,
in the sense of compulsory
relocation, is a common feature of wars. According to one commentator, displacement
is not genocide
even if the consequence is dissolution of the group,[517]
a proposition on which I reserve my opinion where it is proven that, there
being an initial listed act, the deliberate
object of the relocation is to
accomplish such a dissolution.
56. In support of his submission that displacement is not genocide, counsel
for the appellant cited the fact that displacement
is not listed in article
4 2 of the Statute as one of the means of perpetrating genocide, and he drew
a contrast with
article 5(d) which specifically sets out deportation as a
crime against humanity.[518]
There is also the fact that the only case of transfer which amounts to genocide,
if there is the required intent, is a
case of �forcibly transferring children
of the group to another group� within the meaning of article 4 2 (e) of the
Statute.
57. No doubt, mere displacement does not amount to genocide. But, in this
case, there was more than mere displacement. The killings,
together with a
determined effort to capture others for killing, the forced transportation
or exile of the remaining population,
and the destruction of homes and places
of worship, constituted a single operation which was executed with intent
to destroy
a group in whole or in part within the meaning of the chapeau to
paragraph 2 of article 4 of the Statute.[519]
It was this combination of factors to which the Trial Chamber referred when
it stated in paragraph 595 of its judgment
that the �Bosnian Serb forces knew,
by the time they decided to kill all of the military-aged men, that the combination
of those killings with the forcible transfer of the women, children and elderly
would inevitably result in the physical disappearance
of the Bosnian Muslim
population at Srebrenica.� It was likewise a combination of factors which
led the German Supreme
Court in a 1999 case to hold that there was no mere
displacement but genocide in that case.[520]
5. Conclusion as to whether there was genocide
58. In support of his interesting submission that Srebrenica was not a genocide,
counsel for the appellant contended that, while
�calling the atrocities at
Srebrenica genocide would be of some short term comfort to the families of
the victims, and
a politically correct thing to do at this moment in time,
this Court�s judgment must be written for the ages.�[521]
Counsel is right in the important sense that the duty of the Tribunal is to
adjudicate on the basis of legal principles;
it is not its mission to decree
on the convenience of political considerations. Yet, however vigorous the
reminder, the
Appeals Chamber does not need it. In this case, guided by what
it finds to be the applicable legal norms, it found that Srebrenica
was a
genocide. I agree with the finding.
G. Aiding and abetting
1. There is a crime of aiding and abetting the commission
of genocide
59. I agree with the Appeals Chamber that, under customary international
law, there is a crime of aiding and abetting the commission
of genocide and
that it has power to substitute a conviction for aiding and abetting genocide
for a conviction by the Trial
Chamber for committing genocide as a perpetrator.
60. An argument is that the reference to a �person who � aided and abetted
�� in article 7 1 of the Statute does not authorize
a prosecution for aiding
and abetting genocide. The asserted reason is that genocide and any crime
related to genocide
are exclusively regulated by article 4 of the Statute
and that that article does not comprehend a crime of aiding and abetting
genocide.
More particularly, it is said that article 4 requires proof that an accused
had the specific genocidal intent
if he is charged with any of the crimes
listed in that article including a crime of �complicity in genocide� as mentioned
in article 4 3 (e), and that aiding and abetting does not require such proof,
it being only necessary to prove that an accused
charged with aiding and abetting
had knowledge of the intent. Therefore, a crime of aiding and abetting genocide
would
add to the genocidal crimes authorized by article 4, relevant provisions
of which correspond to articles II and III of the Genocide
Convention of 1948,
which in turn reflect customary international law. That would be in breach
of the well understood prohibition
against adding to crimes which existed
under customary international law.
61. It will be convenient to pause for the purpose of dealing with an initial
question as to whether a person charged with aiding
and abetting the commission
of a crime of specific intent has to be shown to have had that intent, as
distinguished from
merely knowing of it. The judgment of the Appeals Chamber
indicates that an affirmative answer is given to the question in most
states
of the United States, but that a negative answer is given in other jurisdictions
(including a minority of states
in the United States).[522]
I understand the Appeals Chamber to be taking the view that it is the latter
position which is relevant to this case, that
is to say, that proof of possession
of specific intent is not required for aiding and abetting the commission
of a crime
of specific intent, mere knowledge of the intent being enough.
It is on this basis, with which I agree, that the inquiry will
proceed.
62. As to the main question, it seems to me that either aiding and abetting
is part of complicity in genocide as the latter
is referred to in article
4 3 (e) of the Statute or it is not. If it is not part of complicity in genocide,
it follows
that, so far as the operation of the Convention is concerned, it
cannot be part of customary international law. To make an act
punishable as
aiding and abetting under article 7 1 of the Statute when it is not punishable
as complicity in genocide
under article 4 3 (e) is therefore to add impermissibly
to customary international law.
63. On the other hand, if aiding and abetting is part of complicity in genocide,
it is part of customary international law by
reason of complicity in genocide
being provided for in the Genocide Convention in 1948. In that case, the reference
to
aiding and abetting in article 7 1 of the Statute merely reproduces customary
international law as contained in the reference
to complicity in genocide
as mentioned in article 4 3 (e) of the Statute. So neither provision is in
breach of the prohibition
against adding to customary international law.
64. But is aiding and abetting part of complicity in genocide? I see nothing
in the text of the Genocide Convention or in the
relevant travaux pr�paratoires
which is inconsistent with the ordinary meaning of �complicity in genocide�
as including aiding and abetting. As has been noticed
by the Appeals Chamber,
the case law of the Tribunal shows that the cognate term �accomplice� has
different meanings depending
on the context; the term may refer to a co-perpetrator
or to an aider and abettor.[523]
In my view, the reference in article 4 3 (e) of the Statute to �complicity
in genocide� can and does include aiding and
abetting.
65. If the Statute falls to be construed to mean that it has incorporated
aiding and abetting as part of complicity in genocide,
it appears to me that
it has also imported the general law relating to aiding and abetting, in accordance
with which, as
has been discussed, it has to be shown that the aider and abettor
had knowledge of the intent to commit genocide, not that he
shared that intent.
66. This does not mean that the act of the aider and abettor does not have
to be shown to be intentional. Intent must always
be proved, but the intent
of the perpetrator of genocide is not the same as the intent of the aider
and abettor. The perpetrator�s
intent is to commit genocide. The intent of
the aider and abettor is not to commit genocide; his intent is to provide
the
means by which the perpetrator, if he wishes, can realise his own intent
to commit genocide.[524] Nor
does it follow that proof of genocidal intent is in no sense required. But
what has to be shown is that the perpetrator
had that intent; it does not
have to be shown that the aider and abettor himself had that intent. In the
case of the aider
and abettor what has to be shown is that he had knowledge
that the perpetrator had that intent.
67. The framers of the Genocide Convention would not have learnt from their
recent past if, as the opposing argument implies,
the Convention failed to
criminalise a case in which commercial suppliers sold a deadly gas knowing
of the intent of the
purchaser to use his purchase for the purpose of liquidating
a national, ethnical, racial or religious group but not themselves
sharing
the purchaser�s intent.[525]
In my opinion, the Genocide Convention did not make that mistake; the case
would be caught by the concept of aiding and
abetting, which would in turn
be caught by the reference in the Convention to �complicity in genocide.�
68. This conclusion is in keeping with the case law of this Tribunal and
of the ICTR to the effect that �complicity in genocide�,
as mentioned in article
4 3 (e ) of the ICTY Statute (article 2 3 (e) of the ICTR Statute(, includes
aiding and abetting
as referred to in article 7 1 of the ICTY Statute (article
6 1 of the ICTR Statute(. The case law is correct: aiding and abetting
genocide
does not represent an addition to crimes known to customary international
law but has always formed part of that
law.
2. But, on the facts, the Appeals Chamber cannot impose
a conviction for aiding and abetting
69. While I agree with the Appeals Chamber that it has competence to impose
a conviction for aiding and abetting the commission
of genocide, I am not
able to support its decision that such a conviction should be imposed in this
case.
70. There are many things to be said in favour of the appellant. The Trial
Chamber correctly remarked that he �found himself
squarely in the middle of
one of the most heinous wartime acts committed in Europe since the Second
World War.�[526] He appeared
to the Trial Chamber �as a reserved and serious career officer who is unlikely
to have ever instigated a plan
such as the one devised for the mass execution
of Bosnian Muslim men, following the take-over of Srebrenica in July 1995.�[527]
Speaking on 12 July 1995 of the women and children being transported out of
Potocari, he warned with impeccable military
propriety that �not a hair must
be touched on their heads.�[528]
In an interview given on the same day, he emphasised that the civilians would
be treated properly and transported wherever
they wanted to go.[529]
In the words of the Trial Chamber, �the security unit of the Main Staff was
heavily involved in carrying out the crimes
and there are indications on the
Trial Record that the Drina Corps was not always consulted about what was
going on within
its zone of responsibility.�[530]
And the appellant did at the same time have to concentrate on another task,
namely, the capturing of the UN protected enclave
of Zepa.
71. The question is whether these matters sound in mitigation of guilt as
a co-perpetrator or whether they go to prove that
the appellant�s guilt was
that only of an aider and abettor. The difference between committing a crime
as a co-perpetrator
in a joint criminal enterprise and aiding and abetting
its commission was explained in Tadic.[531]
In �the case of aiding and abetting, the requisite element is knowledge that
the acts performed by the aider and abettor
assist the commission of a specific
crime by the principal. By contrast, in the case of common purpose or design
more is
required (i.e., either intent to perpetrate the crime or intent to
pursue the common criminal design plus foresight that those
crimes outside
the criminal purpose were likely to be committed )��.
72. On the basis of this distinction, it appears to me that the Trial Chamber
correctly found that the appellant not merely
knew of an intent to commit
genocide but that he also shared that intent and that he was therefore guilty
as a co-perpetrator
of genocide,[532]
matters in his favour being taken into account in sentencing. The position
was rightly understood by the Trial Chamber
when it stated as follows in paragraph
724 of its judgment, concerned with sentencing:
The Trial Chamber�s overall assessment is that General Krstic
is a professional soldier who willingly participated in the forcible
transfer
of all women, children and elderly from Srebrenica, but would not likely,
on his own, have embarked on a genocidal
venture; however, he allowed himself,
as he assumed command responsibility for the Drina Corps, to be drawn into
the heinous
scheme and to sanction the use of Corps assets to assist with
the genocide�. Afterwards, as word of the executions filtered
in, he kept
silent and even expressed sentiments lionising the Bosnian Serb campaign in
Srebrenica. � His story is one
of a respected professional soldier who could
not balk his superiors� insane desire to forever rid the Srebrenica area of
Muslim civilians, and who, finally, participated in the unlawful realisation
of this hideous design.
73. Subject to weight, it appears to me that that approach was a fair one.
It took account of the professionalism of the appellant
as a career military
officer and of the fact that, by himself, he would not commit the crimes into
which he allowed himself
to be led. These are matters which go to mitigate
his guilt as a co-perpetrator of genocide and not to reduce his criminal responsibility
to that of an aider and abettor. To adopt and adapt the words of Tadic,[533]
to hold him liable only as an aider and abettor would be to understate the
degree of his criminal responsibility.
74. It seems to me that there are problems in reaching the conclusion that
the appellant�s guilt was that of an aider and abettor.
The Appeals Chamber
accepts that Drina Corps personnel and resources were used for the killings.[534]
Explaining this, it said that the appellant �knew that by allowing Drina
Corps resources to be used he was making a substantial contribution to the
execution of the Bosnian Muslim prisoners.
Although the evidence suggests
that Radislav Krstic was not a supporter of that plan, as Commander of the
Drina Corps he
did nothing to prevent the Main Staff from calling upon Drina
Corps resources, and he permitted that employment of those resources.�[535]
75. A substantial contribution for the purpose of aiding and abetting is
a contribution that assists the perpetrator to commit
his crime if he wishes
to do so. That must be distinguished from participating in the commission
of the crime itself. If,
as I think, by �allowing,� or by reason of the fact
that he �permitted,� the use of Drina Corps personnel and resources for
the
executions, the appellant authorized that use for that purpose, I would think
that he was participating in the commission
of the crime itself and not merely
enabling the perpetrator to commit the crime if he so wished. He was therefore
correctly
adjudged to be guilty of genocide.
H. Cumulation
76. Finally, there is a question as to whether convictions can be cumulated
where criminality arises from the same conduct.
I respectfully agree with
the Appeals Chamber in allowing the appeal by the prosecution against the
decision of the Trial
Chamber that a conviction for extermination cannot be
cumulated with a conviction for genocide and that a conviction for persecution
cannot be cumulated with a conviction for genocide.
77. I only note that, without discussion, the Appeals Chamber has not recorded
corresponding convictions, an omission not reconcilable
with controlling jurisprudence.
The question has not been whether the Appeals Chamber could reverse an acquittal
and replace
it by a conviction, but whether there is a right of appeal from
such a conviction and, if so, to which body. [536]
The second part of the question does not control the first. Either an appellant
has a right of appeal from a conviction
by the Appeals Chamber or he has not.
If he has such a right of appeal, he can exercise his right of appeal to whatever
may be the correct forum. If he has no such right of appeal, it does not follow
that there can be no conviction. That is not
my reading of the Statute and
applicable human rights instruments.[537]
78. Suppose that an accused has been acquitted on all charges by the Trial
Chamber, but that the acquittals are all reversed
by the Appeals Chamber.
On the view that no convictions are to be entered, the accused, though found
to have committed
possibly very serious crimes, goes free. This needs to be
compared with Rule 99(B) of the Rules of Evidence and Procedure. That
Sub-Rule
provides that, though acquitted, an accused may be detained pending appeal
by the prosecution. It is reasonable
to suppose that that implies an understanding
by the judges who legislated the Sub- Rule that a sentence of imprisonment
can be passed by the Appeals Chamber and that therefore the Appeals Chamber
is competent to make a conviction. If the Appeals
Chamber is not competent
to make a conviction, that Sub-Rule would have to be revoked, as there would
be no juridical basis
for detaining an acquitted accused pending appeal by
the prosecution.
79. A possible answer to these problems is to say that the Appeals Chamber
can remit the matter to the Trial Chamber for a conviction
to be made and
for sentence appropriate to the conviction to be passed. But, wide as it is,
the power to remit is not at
large. It does not embrace a case in which, as
I opine, the only reason for remitting is an erroneous assumption that the
Appeals Chamber is itself not competent to convict. The existence of that
competence is shown by Rule 99(B).
80. To return to the remaining points on cumulation, I accept the Appeals
Chamber�s decision that a conviction for murder as
a crime against humanity
cannot be cumulated with a conviction for persecution and that a conviction
for inhumane acts
cannot be cumulated with a conviction for persecution. Previous
decisions of the Appeals Chamber (to some of which I was a party)[538]
point this way. However, had it not been for those decisions I should have
had difficulty in joining in with the decision
of the Appeals Chamber. I note
below the reasons for this difficulty.
1. Persecution and murder
81. First, then, there is the question whether a conviction for persecution,
as a crime against humanity under article 5(h)
of the Statute, may be cumulated
with a conviction for murder, as a crime against humanity under article 5(a),
in relation
to the same conduct. The Trial Chamber held that only a conviction
for persecution was possible; it dismissed the charge of
murder.[539]
There could be a problem with that view.
82. The question of cumulation is approached in some jurisdictions through
the concept of abuse of process. In the Tribunal,
it is regulated by principles
deriving from the Blockburger[540]
test as adopted in Delalic.[541]
It is accepted that an accused is only to be punished for his actual criminal
conduct. But his actual criminal conduct
may embrace several crimes. If it
does, more than one conviction may be necessary to describe the full criminality
of his
conduct, any overlapping being taken into account in sentencing.
83. Thus, it is possible that murder has been committed under paragraph
(a) of article 5 without any additional features to
indicate that it was also
committed with intent to persecute the victim on �political, racial and religious
grounds� under
paragraph (h) of that article. If that is the case, then the
conviction has to be for murder alone. If that is not the case,
the full criminality
of the offender�s conduct will not be dealt with unless there is also a conviction
for persecution.
But it is said that the elements of murder are subsumed by
those of persecution and that therefore only a conviction for persecution
is possible. Is the argument sound?
84. Under article 5 of the Statute, it is possible to cumulate extermination
and enslavement, enslavement and deportation, deportation
and imprisonment,
imprisonment and torture, torture and rape, all charged under different paragraphs
of that article. However,
on the Appeals Chamber�s view, it will not be possible
to cumulate persecution under paragraph (h) of that article with any
of these
crimes. In other words, once persecution is brought on the basis of the other
crimes, it will not be possible
to proceed independently for any of them.
In particular, it will not be possible to make an independent conviction for
murder under paragraph (a) of that provision if, under paragraph (h), there
is also a conviction for persecution. That seems
curious.
85. In probing this curiosity, it is helpful to note that the substantial
idea underlying the Blockburger[542]
principles is that the lawgiver �does not intend to punish the same offense
under two different statutes. Accordingly,
where two statutory provisions
proscribe the �same offense�, they are construed not to authorize cumulative
punishments
in the absence of a clear indication of contrary legislative intent.�[543]
I am unable to see that the �same offense� was being proscribed by the two
provisions in this case. The intention was to
defend different interests of
the international community, and that in my view remains a valid way in which
an international
criminal tribunal should look at the matter. Those interests
do not of course replace any formal tests adopted by the Tribunal,
but it
will be superficial to suggest that, in an institution of this kind, those
interests do not serve to explain the
import and operation of those tests.[544]
86. The jurisprudence in Australia could be restated in terms of Blockburger,
but it is interesting and useful to note that the courts there seem to apply
a gist or gravamen approach to the problem
of cumulation. In Pearce v.
The Queen ,[545] the appellant
was convicted of �grievous bodily harm� under the usual provision dealing
directly with that subject and
also of �grievous bodily harm� under another
provision which dealt with that offence when committed in the course of breaking
and entering a dwelling house. In holding that there were impermissible double
convictions, the leading judgment of the
High Court of Australia said that
�a single act (the appellant�s inflicting grievous bodily harm on his victim)
was an
element of each of the offences.�[546]
As the gist of that act would be included in the offence when committed in
the course of breaking and entering a dwelling
house, a conviction for both
offences was not permissible.
87. That is consistent with the seemingly different position taken by the
Supreme Court of New South Wales (Court of Criminal
Appeal) in R. v. Lucy
Dudko.[547] There, force
was used to rescue a prisoner at a penitentiary and at the same time the same
force was used as a threat to
accomplish the hijacking of a helicopter which
was used to transport him. In the leading judgment, Spigelman, C.J., said:
[I]n one case the focus was on a rescue by force and in
the other case, on a hijack by threat. Even though the force and the
threat
was constituted by the same act, it cannot be concluded in this case, unlike
Pearce, that the Appellant has been �doubly punished for a single act.�
In Pearce, the single act was the infliction of grievous bodily harm.
That was much more than simply an element of the offence, it was
the gist
or gravamen of the criminal behaviour. In the present case the gist or gravamen
of the criminal behaviour was
not the same in the two offences. In my opinion
it is not correct to say that there was a double punishment on the facts of
this case.
88. In Dudko, there was a common physical act, but its focus was
not the same in the two offences: the gist or gravamen of each offence was
different from that of the other. In the present matter, the gist or gravamen
of one case is that the appellant murdered
civilians; in the other case, the
different gist or gravamen is that the appellant persecuted those victims
as evidenced
by the murders. The focus is different; the first crime, together
with the circumstances in which it occurred, is evidence of
the second crime
but it is not the same as the second.
89. I think this is the theory on which the indictment was based. Paragraph
31 of the indictment reads as follows:
The crime of persecutions was perpetrated, executed, and
carried out by or through the following means:
a. the murder of thousands of Bosnian Muslim civilians,
including men, women, children, and elderly persons;
b. the cruel and inhumane treatment of Bosnian Muslim civilians,
including severe beatings;
c. the terrorizing of Bosnian Muslim civilians;
d. the destruction of personal property of Bosnian Muslims;
and,
e. the deportation or forcible transfer of Bosnian Muslims
from the Srebenica enclave.
By these acts or omissions, and the acts and omissions described
in paragraphs 4, 6, 7, 11 and 22 through 26, RADISLAV KRSTIC
committed:
COUNT 6: Persecutions on political, racial and religious
grounds, a CRIME AGAINST HUMANITY, punishable under Articles 5(h),
and 7 1
and 7 3 of the Statute of the Tribunal.
While this part of the indictment speaks of �murder�, it does so by way of
stating a �means� through which persecution was committed.
90. It is important to bear in mind the distinction between the legal elements
of an offence and the evidence on which those
elements are based. It is accepted
that persecution is �the gross or blatant denial, on discriminatory grounds,
of a fundamental
right, laid down in international customary or treaty law,
reaching the same level of gravity as the other acts prohibited under
Article
5.�[548] There is nothing
in that definition which replicates the legal elements of the crime of murder.
Murder is a crime of specific
intent,[549]
the intent being to cause the death of the victim. That element is not required
by persecution. The conduct of the appellant
in committing the crime of murder
may be evidence of the crime of persecution, but the legal elements of the
crime of murder
are not themselves part of the legal elements of the crime
of persecution.
91. Were it otherwise, the legal elements of the crime of persecution would
vary according to the legal elements of the particular
crime on which the
persecution is based. The legal elements of the crime of persecution would
include the legal elements
of the crime of enslavement if enslavement were
alleged to be the basis of the persecution charged. Similarly with respect
to deportation, imprisonment, torture and rape. The legal elements of a charge
for persecution would thus vary from case
to case; in the present case, they
would include the legal elements of all the crimes on which the persecution
is alleged
to have been based. That variability is not reconcilable with the
stability, definitiveness and certainty with which the legal
elements of a
crime should be known. Those elements must not depend on accidents of prosecution;
they must clearly appear
once and for all from a reading of the provision
defining the crime.
92. Paragraph 31 of the indictment alleges that persecution was committed
�through the following means�, murder and four other
matters being cited,
some clearly falling under article 5 of the Statute. It cannot be that a conviction
for persecution
was intended to embrace convictions for all these other crimes.
A conviction for persecution as a crime against humanity does
not focus on
the guilt of the appellant in committing a particular crime of murder as a
crime against humanity. On the
other hand, a conviction for murder as a crime
against humanity does not focus on those aspects of the conduct involved in
the commission of that crime which portray an intention to persecute. To
have recourse to the jurisprudence of Australia,
the gravamen or gist of the
crime of persecution is different from the gravamen or gist of the crime of
murder.
93. In short, all the legal elements of the crime of murder lie outside
of the legal elements of the crime of persecution: the
facts of the murder
are only evidence on which the charge of persecution is based. Delalic
does not mandate non -cumulation in this case. There could therefore be
difficulty with the holding in paragraph 675 of the impugned
decision in favour
of non-cumulation.
2. Persecution and inhumane acts
94. Second, there is the question whether a conviction for persecution under
article 5(h) of the Statute may be cumulated with
a conviction for inhumane
acts (in relation to forcible transfers) under article 5(i). The Trial Chamber
held that cumulation
was not permissible, considering that a conviction for
persecution was enough. The same reasoning as above suggests difficulties
with that holding.
I. Conclusion
95. Genocide is the �crime of crimes�. The Appeals Chamber has said, correctly,
that it �is one of the worst crimes known to
humankind, and its gravity is
reflected in the stringent requirement of specific intent.�[550]
But, with respect, the stringency should not be overrated; to suggest that
the requirement of proof of specific intent
was not observed by the Trial
Chamber in this case is not plausible.
96. In my view, it has not been shown that no reasonable tribunal of fact
could have assessed the evidence as the Trial Chamber
did; going further,
I opine that no reasonable tribunal of fact could have assessed the evidence
differently from the way
in which the Trial Chamber assessed it. The appellant
was a �principal perpetrator � of genocide, as the Trial Chamber said
he was.
97. However, I consider that effect to the mitigating matters referred to
indicates that the proper sentence should be imprisonment
for thirty-five
years, being the same period as that fixed by the Appeals Chamber on another
approach.
Done in both English and French, the English text being authoritative.
_______________
Mohamed Shahabuddeen
Dated this 19th April 2004
At The Hague
The Netherlands
[Seal of the Tribunal]
IX. ANNEX A: PROCEDURAL BACKGROUND
1. The main aspects of the appeal proceedings are summarised below.
A. Notices of Appeal and Issues Relating to Judges
2. The Trial Judgement was handed down on 2 August 2001.[551]
In accordance with Rule 108 of the Rules, the Defence and the Prosecution
filed their Notices of Appeal on 15 August[552]
and 16 August 2001, respectively. On 17 September 2001, the then-President
of the Tribunal, Judge Jorda, issued an order
assigning the following judges
to the Appeals Chamber: Judge Hunt, Judge Shahabuddeen, Judge G�ney, Judge
Gunawardana,
and Judge Pocar.[553]
On 28 September 2001, the Presiding Judge, Judge Shahabuddeen, designated
Judge Hunt as the Pre-Appeal Judge in this case.[554]
3. On 8 November 2002, Judge Jorda, as President, issued an order assigning
Judge Meron to replace Judge Gunawardana on the
bench of the Appeals Chamber.[555]
4. On 24 July 2003, Judge Meron, as President, issued an order assigning
Judge Schomburg to replace Judge Hunt on the bench
of the Appeals Chamber.[556]
5. On 14 October 2003, Judge Meron, as President, issued an order designating
himself as the Pre-Appeal Judge in this case.[557]
B. Filings
6. The Prosecution filed its Appeal Brief on 14 November 2001.[558]
On 5 November 2001, the Pre-Appeal Judge had granted the Defence�s request
for an extension of time to file its Appeal
Brief,[559]
and the Defence filed a confidential version of its Appeal Brief on 10 January
2002.[560]
7. On 17 December 2001, The Pre-Appeal Judge rejected the Defence�s petition
for an extension of time to file its Response to
the Prosecution Appeals Brief,[561]
and on 21 December 2001 the Defence filed its Response to the Prosecution
Appeals Brief.[562]
8. Following the Pre-Appeal Judge�s Decision allowing an extension of time
for the filing of its Brief in Reply,[563]
the Prosecution filed its Brief in Reply on 14 January 2002.[564]
The Prosecution then filed confidentially its Response to the Defence Appeal
Brief on 19 February 2002.[565]
The Defence filed its Brief in Reply on 6 March 2002.[566]
9. On 10 April 2002, the Pre-Appeal Judge ordered the Prosecution and the
Defence to file within 28 days public redacted versions
of the Prosecution
Response to the Appeal Brief and the Defence Appeal Brief, respectively.[567]
The Defence filed its public version of the Defence Appeal Brief on 7 May
2002.[568] The Prosecution
filed a public version of its Response to Defence Appeal Brief on 8 May 2002.[569]
C. Grounds of Appeal
10. The Prosecution bases its appeal on two grounds. First, the Prosecution
appeals against the Trial Chamber�s conclusion on
impermissibly cumulative
convictions.[570] Second,
the Prosecution appeals against the sentence imposed by the Trial Chamber.[571] It requested the imposition
of a life sentence on Radislav Krstic, with a minimum of 30 years imprisonment.
11. The Defence bases its appeal on four grounds. First, it appeals against
the conviction for genocide of Radislav Krstic on
the basis that factual and
legal errors had been committed by the Trial Chamber;[572]
second, it appeals on the basis of various disclosure practices of the Prosecution
which it alleges deprived Krstic of
a fair trial;[573]
third, it alleges that the Trial Chamber made a number of factual and legal
errors ;[574] and fourth,
it appeals against the sentence handed down to Krstic because the Trial Chamber
failed adequately to take into
account the sentencing practice in the former
Yugoslavia, and to give sufficient weight to the alleged mitigating circumstances.[575]
D. Issues Relating to Evidence 1 : General
12. During these proceedings, the Appeals Chamber received a number of requests
from third parties, mostly for access to evidence
submitted in this case.
In addressing these requests, the Appeals Chamber was asked to vary certain
protective measures
pursuant to Rule 75(G).
E. Issues Relating to Evidence 2 : Rule 68
13. On 30 November 2001, the Defence filed a Motion for Production of Evidence.[576]
On 10 December 2001, the Prosecution filed confidentially its Response to
that Motion ;[577] the Defence
filed its Reply on 11 December 2001,[578]
and the Defence on 24 December 2001 then filed confidentially a Supplemental
Reply[579] to which, subject
to the Pre-Appeal Judge�s subsequent order granting it leave to do so,[580]
the Prosecution filed a response on 12 February 2002.[581]
The Defence then filed a Request for Deferral of Decision on 20 February 2002.[582]
The Prosecution responded to this Request on 5 March 2002,[583]
in which it did not oppose the Defence�s Request.
14. On 1 March 2002,[584]
the Pre-Appeal Judge granted leave to the Prosecution to file a further Response
concerning conceded violations of its
obligations under Rule 68 by 8 March
2002.[585] On 11 March 2002,
the Prosecution filed its Further Response to Appellant�s 24 December 2001
Supplemental Reply,[586] and
on 26 March 2002, the Defence confidentially filed its Further Reply to the
Prosecutor�s 11 March 2002 Further Response.[587]
15. On 10 April 2002 the Prosecution filed a Motion proposing a procedure
for the further proceedings on the Motion for Production
of Evidence filed
on 30 November 2001, or alternatively a request for extension of time.[588]
16. The Defence confidentially filed its Appeal Brief concerning Rule 68
violations on 11 April 2003.[589]
Following the granting of an extension of time,[590]
the Prosecution filed confidentially its Response to the Defence�s Brief Concerning
Rule 68 Violations on 8 May 2003.[591]
The Defence confidentially filed its Reply on 22 May 2003.[592]
Having being granted leave to do so,[593]
the Prosecution then confidentially filed a Further Response on 30 June 2003.[594]
Subsequent to being granted an extension of time to do so,[595]
the Defence confidentially filed its Further Reply to Prosecution�s Further
Response to Reply on 14 July 2003.[596]
17. On 18 November 2003, the Prosecution filed its Motion for the Filing
of Rule 68 Evidence, Admission of Rebuttal Evidence
and Admission of 115 Evidence
in Response to the Defence Supplemental Motion to Present Additional Evidence
Pursuant to
Rule 115.[597]
The Defence filed its Reply to this motion on 20 November 2003.[598]
The Prosecution subsequently withdrew its Motion on 20 November 2003.[599]
F. Issues Relating to Evidence 3 : Witnesses
18. On 1 April 2003, the Defence confidentially filed a Motion seeking the
issuance of subpoena for witnesses.[600]
By Order of 1 July 2003, the Appeals Chamber granted the issuance of the two
subpoenas sought.[601] The
subpoenas were issued confidentially on 10 July 2003.
19. In its Decision of 19 November 2003, the Appeals Chamber summoned a
witness proprio motu pursuant to Rules 98 and 107.[602]
G. Issues Relating to Evidence 4 : Rule 115 Motions
20. The Defence confidentially filed a Rule 115 Motion for the admission
of additional evidence on 10 January 2003,[603]
and a confidential Supplemental Motion on 21 January 2003.[604]
Having been granted an extension of time,[605]
the Prosecution confidentially filed its Response to the Defence�s Rule 115
Motions on 31 January.[606]
The Defence filed confidentially its reply on 12 February 2003[607]
following the granting of an extension of time.[608]
By Order of 26 February 2002,[609]
the Prosecution was granted leave[610]
to amend its Response to the Defence�s Rule 115 Motion. On 5 August 2003,
the Appeals Chamber ordered that some of the
evidence be admitted as additional
evidence on appeal pursuant to Rule�115.[611]
21. On 24 September 2003, the Appeals Chamber issued a Scheduling Order
requiring the Prosecution to file a Notice indicating
whether or not it would
seek to rely on any rebuttal evidence, and if so, to submit such evidence.[612]
The Prosecution filed its Notice pursuant to that Order on 3 October 2003.[613]
Following a Decision granting it an extension of time,[614]
the Defence filed its Reply on 30 October 2003.[615]
In its Decision of 19 November 2003, the Appeals Chamber ordered the admission
of the evidence submitted by the Prosecution.[616]
22. The Defence confidentially filed a further Rule 115 Motion for the admission
of additional evidence (two witness statements)
on 7 August 2003.[617]
The Prosecution filed a confidential Response on 15 August 2003.[618]
The Defence�s Motion was denied by the Appeals Chamber in its Decision of
15 September 2003.[619]
23. On 4 November 2003, the Defence filed a Supplemental Motion to Present
Additional Evidence Pursuant to Rule 115,[620]
to which the Prosecution responded confidentially on 11 November 2003.[621]
The Defence replied confidentially to the Prosecution�s Response on 17 November
2003.[622] In its Decision
of 20 November 2003,[623]
the Appeals Chamber granted the Motion.
24. On 30 October 2003, the Defence sought to admit a report prepared by
its military expert.[624]
On 12 November 2003, the Prosecution submitted confidentially a Motion[625]
to disallow this evidence submitted by the Defence, together with a subsequent
supplement.[626] The Defence
filed its Answer to this Motion on 17 November 2003,[627]
and the Prosecution responded on 18 November 2003.[628]
In its Decision of 20 November 2003, the Appeals Chamber dismissed the Defence�s
submission. [629]
25. The Prosecution submitted a Motion for the Admission of Additional Evidence
on 11 November 2003, which was partly confidential
and ex parte,[630]
to which the Defence replied on 17 November 2003.[631]
Subsequently, the Prosecution filed its Reply.[632]
The Appeals Chamber dismissed the motion in its Decision of 19 November 2003.[633]
H. Status Conferences
26. Status Conferences were held pursuant to Rule 65bis of the Rules
on 11 December 2001; 5 April 2002; 27 August 2002; 25 November 2002; 19 March
2003; 30 July 2003; and 1 April
2004.
I. Hearings
27. The evidentiary portion of the hearing was held on 21 November 2003.
The remainder of the hearing was held on 26 and 27
November 2003.
X. ANNEX B: GLOSSARY OF TERMS
A. List of Court Decisions
1. ICTY
ALEKSOVSKI Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-A, Judgement, 24
March 2000 (�Aleksovski Appeal Judgement�).
BANOVIC Prosecutor v. Pedrag Banovic, Case No. IT-02-65/1-S, Sentencing Judgement,
28 October 2003 (�Banovic Sentencing Judgement�).
BLASKIC Prosecutor v. Tihomir Blaskic, Decision on the Production of Discovery
Materials, Case No. IT-95-14-PT, Trial Chamber, signed 27 January 1997, filed
30 January
1997 (�Blaskic Decision on the Production of Discovery Materials�).
Prosecutor v Tihomir Blaskic, Decision on the Defence Motion for Sanction�s
for the Prosecutor�s Continuing Violation of Rule 68, Case No. IT-95-14-T, 28
September 1998 (�Blaskic Decision on the Defence Motion for Sanction�s
for the Prosecutor�s Continuing Violation of Rule 68�).
Prosecutor v. Tihomir Blaskic, Decision on the Appellant�s Motion for
the Production of Material, Suspension or Extension of the Briefing Schedule,
and Additional
Findings, Case No. IT-95-14-A, Bench of the Appeals Chamber,
26 September 2000 (� Blaskic Decision on the Appellant�s Motion for the
Production of Material �).
BRDJANIN AND TALIC Prosecutor v. Radoslav Brdjanin, Decision on �Motion for Relief from
Rule 68 Violations by the Prosecutor and for Sanctions to be Imposed Pursuant
to Rule
68bis and Motion for Adjournment while Matters affecting Justice
and a Fair Trial can be Resolved�, Case No. IT-99-36-T, Trial Chamber
II, 30
October 2002 (�Brdjanin Decision on Motion for Relief from Rule 68 Violations
by the Prosecutor �).
CELEBICI Prosecutor v. Zejnil Delalic et al., Case No. IT-96-21-T, Decision on
the Request of the Accused Hazim Delic Pursuant to Rule 68 for Exculpatory Information,
24
June 1997 (�Celebici Decision on the Request of the Accused Hazim
Deli c Pursuant to Rule 68�).
Prosecutor v. Zejnil Delalic, Zdravko Mucic also known as �Pavo�, Hazim
Delic and Esad Landzo also known as �Zenga�, Case No. IT-96-21-T, Judgement,
16 November 1998 (�Celebici Trial Judgement�).
Prosecutor v. Zejnil Delalic, Zdravko Mucic (aka �Pavo�), Hazim Delic and
Esad Landzo (aka �Zenga�) (�Celebici Case�), Case No. IT-96-21-A,
Judgement, 20 February 2001 (�Celebici Appeal Judgement�).
Prosecutor v. Zdravko Mucic, Hazim Delic and Esad�Landzo, Case No.
IT-96- 21-A bis, Judgement on Sentence Appeal, 8 April 2003 (�Mucic
et al. Judgement on Sentence Appeals�).
FURUNDZIJA Prosecutor v. Anto Furundzija, Case No. IT-95-17/1-T, Judgement, 10 December
1998 (�Furundzija Judgement�).
Prosecutor v. Anto Furundzija, Case No. IT-95-17/1-A, Appeal Judgement,
21 July 2000 (�Furundzija Appeal Judgement�).
HADZIHASANOVIC ET AL. Prosecutor v. Enver Hadzihasanovic, Mehmed Alagic and Amir Kubura, Case
No. IT-01-47-1, Indictment (confidential), signed 5 July 2001, filed
6 July 2001 (�Hadzihasanovic et al. Indictment�).
HALILOVIC Prosecutor v. Sefer Halilovic, Case No. IT-01-48-I, Indictment, filed
30 July 2001, modified and supplemented 10 September 2001 (�Halilovic Indictment
�).
JELISIC Prosecutor v. Goran Jelisic, Case No. IT-95-10-T, Judgement, 14 December
1999 (�Jelisic Judgement�).
Prosecutor v. Goran Jelisic, Case No. IT-95-10-A, Judgement, 5 July
2001 (�Jelisic Appeal Judgement�).
KORDIC AND CERKEZ Prosecutor v. Dario Kordic and Mario Cerkez, Order on Motion to Compel
Compliance by the Prosecution with Rules 66 (A) and 68, Case No. IT-95-14/2,
Trial Chamber, 26 February
1999 (�Kordic & Cerkez Order on Motion to
Compel Compliance by the Prosecution with Rules 66 (A) and 68�).
Prosecution v Dario Kordic & Mario Cerkez, Case No. IT-95-14/2-A,
Decision on Motion by Dario Kordic for Access to Unredacted Portions of October
2002 Interviews
with Witness �AT�, signed 23 May 2003, signed 26 May 2003
(�Kordic & Cerkez Decision on Motion by Dario Kordic for Access to
Unredacted Portions of October 2002 Interviews with Witness �AT��).
KRAJISNIK & PLAVSIC Prosecutor v. Momcilo Krajisnik & Biljana Plavsic, Case No. IT-00-39&40
-PT, Decision on Motion from Momcilo Krajisnik to Compel Disclosure of Exculpatory
Evidence Pursuant
to Rule 68, 19 July 2001 (�Krajisnik & Plavsic Decision
on Motion from Momcilo Krajisnik to Compel Disclosure of Exculpatory Evidence
Pursuant to Rule 68�).
Prosecutor v Momcilo Krajisnik & Biljana Plavsic, Case No. IT-00-39&40,
Decision on Prosecution Motion for Clarification in Respect of Application
of Rules 65ter, 66(B) and 67(C), 1 August 2001, (�Krajisnik & Plavsic
Decision on Prosecution Motion for Clarification in Respect of Application
of Rules 65ter, 66(B) and 67(C)�).
KRNOJELAC The Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement,
signed 15 March 2002 (�Krnojelac Judgement�).
The Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Appeal Judgement,
signed 17 September 2003, filed 5 November 2003 (�Krnojelac Appeal Judgement
�).
KRSTIC Prosecutor v. Radislav Krstic, Case No. IT-98-33-T, Order to Appear,
12 December 2000; Order to Appear 2 , 15 December 2000 (�Krstic Order
to Appear�).
Prosecutor v. Radislav Krstic, Case No. IT-98-33-T, Decision on the
Defence Motions to Exclude Exhibits in Rebuttal Evidence and Motion for Continuance,
25 April 2001 (�Decision on the Defence Motions to Exclude Exhibits in Rebuttal
Evidence and Motion for Continuance, 25
April 2001).
Prosecutor v. Radislav Krstic, Case No. IT-98-33-T, Judgement, 2 August
2001 (�Krstic Trial Judgement� or �Trial Judgement�).
Prosecutor v. Radislav Krstic, Case No. IT-98-33-A, Decision on Prosecution�s
Motion to Be Relieved of Obligation to Disclose Sensitive Information Pursuant
to Rule 66(C), IT-98-33-A, 27 March 2003.
Prosecutor v. Radislav Krstic, Decision on Applications for Admission
of Additional Evidence on Appeal, Case No. IT-98-33-A, 5 August 2003 (�Krstic
Decision on Applications for Admission of Additional Evidence on Appeal�).
Prosecutor v. Radislav Krstic, Decision on Prosecution�s Extremely
Urgent Request for Variation of Orders Regarding Private Session Testimony,
IT-98-33-A,
14 November 2003 (�Decision on Prosecution�s Extremely Urgent Request
for Variation of Orders Regarding Private Session Testimony,
14 November 2003�).
Prosecutor v. Radislav Krstic, Reasons for the Decisions on Applications
for Admission of Additional Evidence on Appeal, Case No. IT-98-33-A, (confidential)
6 April 2004, (�Rule 115 Reasons�).
KUNARAC, KOVAC AND VUKOVIC Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic, Case
No. IT-96-23 & IT-96-23/1-T, Judgement, 22 February 2001 (�Kunarac et al.
Trial Judgement�).
Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic,
Case No. IT-96-23 & IT-96-23/1-A, Judgement, 12 June 2002 (�Kunarac et
al. Appeal Judgement�).
Z. KUPRESKIC, M. KUPRESKIC, V. KUPRESKIC, JOSIPOVIC, (PAPIC) AND SANTIC
Prosecutor v. Zoran Kupreskic, Mirjan Kupreskic, Vlatko Kupreskic, Drago
Josipovic and Vladimir Santic, Case No. IT-95-16-A, Appeal Judgement, 23
October 2001 (�Kupreskic et al. Appeal Judgement�).
NIKOLIC Prosecutor v. Momir Nikolic, Case No. IT-02-60/1-S, Sentencing Judgement,
2 December 2003 (�Nikolic Sentencing Judgement�).
OBRENOVIC Prosecutor v. Dragan Obrenovic, Case No. IT-02-60/2-S, Sentencing Judgement,
10 December 2003 (�Obrenovic Sentencing Judgement�).
PLAVSIC Prosecutor v.Biljana Plavsic, Case No. IT-00-39&40/1, Sentencing Judgement,
27 February 2003 (�Plavsic Sentencing Judgement�).
SIKIRICA Prosecutor v. Dusko Sikirica, Damir Dosen, Dragan Kurundzija, Judgement
on Defence Motions to Acquit, 3 September 2001 (�Sikirica Judgement on
Defence Motions to Acquit�).
STAKIC Prosecutor v. Milomir Stakic, Case No. IT-97-24-T, Decision on Rule 98bis
Motion for Judgement of Acquittal, 31 October 2002 (�Stakic Decision
on Rule 98bis Motion for Judgement of Acquittal�)
Prosecutor v. Milomir Stakic, Case No. IT-97-24-T, 31 July 2003 (�Stakic
Trial Judgement�).
TADIC Prosecutor v. Dusko Tadic, Case No. IT-94-1-A, Sentencing Judgement,
14 July 1997 (�Tadic Sentencing Judgement�).
Prosecutor v. Dusko Tadic, Case No. IT-94-1-A, Appeal Judgement, 15
July 1999 (�Tadic Appeal Judgement�).
Prosecutor v. Dusko Tadic, Case No. IT-94-1-A and IT-94-1-Abis,
Judgement in Sentencing Appeals, 26 January 2000 (�Tadic Judgement in
Sentencing Appeals �).
TODOROVIC Prosecutor v. Stevan Todorovic, Case No. IT-95-9/1-S, Sentencing Judgement,
31 July 2001 (�Todorovic Sentencing Judgement�).
VASILJEVIC Prosecutor v. Mitar Vasiljevic, Case No. IT-98-32-T, Judgement, 29 November
2002 (�Vasiljevic Judgement�).
Prosecutor v. Mitar Vasiljevic, Case No. IT-98-32-A, Appeal Judgement,
25 February 2004 (�Vasiljevic Appeal Judgement�).
2. ICTR
AKAYESU Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-A, Judgement, 1 June
2001 (�Akayesu Appeal Judgement�).
BAGILISHEMA Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A-T, Judgement, 7
June 2001 (�Bagilishema Trial Judgement�).
KAMBANDA Jean Kambanda v Prosecutor, Case No. ICTR 97-23-A, Judgement, 19 October
2000 (�Kambanda Appeal Judgement�).
KAJELIJELI The Prosecutor v. Juv�nal Kajelijeli, Case No. ICTR-98-44A-T, Judgement,
1 December 2003, (�Kajelijeli Trial Judgement�).
KAYISHEMA AND RUZINDANA Prosecutor v. Cl�ment Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T,
Judgement, 21 May 1999 (�Kayishema and Ruzindana Trial Judgement�).
MUSEMA Prosecutor v. Alfred Musema, Case No. ICTR-96-13-T, Judgement, 27 January
2000 (�Musema Trial Judgement�).
Prosecutor v. Alfred Musema, Case No. ICTR-96-13-A, Judgement, 16 November
2001 (�Musema Appeal Judgement�).
SEMANZA Prosecutor v. Laurent Semanza, Case No. ICTR-97-20-T, Judgement and Sentence,
15 May 2003 (�Semanza Trial Judgement and Sentence�).
SERUSHAGO Prosecutor v. Omar Serushago, Case No. ICTR-98-39-S, Sentence, 5 February
1999 (�Serushago Sentence�).
3. Other Decisions
Cour de Cassation, Chambre criminelle, 1st October 1984, summary
96.
Dunlop and Sylvester v. Regina ?1979g 2 S.C.R. 881 (Supreme
Court of Canada).
Giorgianni 1985 58 A.L.R. 641 (High Court of Australia).
Judgement of the Swiss Federal Supreme Court (Schweizerisches Bundesgeircht
) of 17 February 1995, in Decisions of the Swiss Federal Supreme Court (Bundesgerichtsentscheide
), 121 IV.
National Coal Board v. Gamble ?1959g 1 Q.B. 11.
B. List of Other Legal Authorities
1. Reports, Books, Edited Volumes and Collections
Cassese, Antonio; Gaeta, Paola; and Jones, John R.W.D. (Eds) The
Rome Statute of the International Criminal Court: A Commentary 2002 .
Courteau, Candace The Mental Element Required for Accomplice Liability,
59 La. L. Rev. 325, 334 1998 .
Eser, Albin; and Kreicker, Helmut Nationale Strafverfolgung V�lkerrechtlicher
Verbrechen (Freiburg) 2003 .
Executive Sessions 2 of the Senate Foreign Relations Committee,
Historical Series 370 1976 .
Hearings on the Genocide Convention Before a Subcommittee of the Senate
Committee on Foreign Relations: The Genocide Convention � Its Origins
and Interpretation, 81st Cong., 2nd Sess., 487, 498 1950 .
Official Report, Fifth Series, Parliamentary debates, Commons 1968-69,
Vol. 777, 3 - 14 February 1969.
Report of the Preparatory Commission for the International Criminal
Court, 6 July 2000, PCNICC/2000/INF/3/Add.2.
Report of the Committee on Foreign Relations, Genocide Convention,
U.S. Senate, 18 July 1981.
Report of the International Law Commission on the Work of Its Forty-Eighth
Session, 6 May � 26 July 1996.
Robinson, Nehemiah, The Genocide Convention, Institute of Jewish
Affairs 1949 .
Schabas, William A, Genocide in International Law, Cambridge University
Press 2000 .
Werle, Gerhard & Jessberger, Florian International Criminal Justice
is coming Home: The new German Code of Crimes against International Law, Criminal
Law Forum
13, 2002
Whitaker, Benjamin, Revised and Updated Report on the Question of
the Prevention and Punishment of the Crime of Genocide, U.N. Doc. E/CN.4/Sub.2/1985/
6.
C. List of Abbreviations
According to Rule 2(B), of the Rules of Procedure and Evidence, the masculine
shall include the feminine and the singular the
plural, and vice-versa.
28th Division
The military unit of the ABiH that was
present in the Srebrenica enclave at the time the events took place
ABiH
Army of Bosnia and Herzegovina
ACHR
American Convention of Human Rights of 22 November
1969
ARK
Autonomous Region of Bosanska Krajina
AT
Transcript page from hearings before the Appeals Chamber.
All transcript page numbers referred to are from the unofficial,
uncorrected
version of the transcript, unless not specified otherwise. Minor differences
may therefore exist
between the pagination therein and that of the final
transcript released to the public.
BiH
Bosnia and Herzegovina
Butler Report
The Testimony of Richard Butler pursuant to the Order
of the Appeals Chamber granting the Appellant�s Oral Rule 115 Motion,
24 November 2003 ("Butler Report").
D
Denotes a Defence Exhibit (Exh.D)
Defence
Counsel for Radislav Krstic
Dutch-bat
The battalion of UNPROFOR troops from the Netherlands
stationed in the Srebrenica enclave from January 1995.
ECHR
European Convention for the Protection of Human Rights
and Fundamental Freedoms of 4 November 1959 (European Convention
on
Human Rights)
Exh.
Exhibit
Federation
The Federation of Bosnia and Herzegovina, being one
of the entities of BiH
FRY
Federal Republic of Yugoslavia (now: Serbia
and Montenegro)
Genocide Convention
Convention on the Prevention and Punishment of the
Crime of Genocide of 9 December 1948
ICC
International Criminal Court
ICC Statute
(Rome) Statute of the International Criminal Court,
of 17 July 1998, UN Doc. A/CONF.183/9
ICTR
International Criminal Tribunal for the Prosecution
of Persons Responsible for Genocide and Other Serious Violations of
International Humanitarian Law Committed in the Territory of Rwanda
and Rwandan Citizens responsible for genocide
and other such violations
committed in the territory of neighbouring States, between 1 January
1994 and 31
December 1994
ICTR Rules
Rules of Procedure and Evidence of the International
Criminal Tribunal for Rwanda, in force
ICTR Statute
Statute of the International Criminal Tribunal for
Rwanda, established by Security Council Resolution 955
ICTY
International Tribunal for the Prosecution of Persons
Responsible for Serious Violations of International Humanitarian
Law
Committed in the Territory of the Former Yugoslavia since 1991
IKM
Serbo-Croatian acronym for istureno komandno mesto,
the equivalent of �Forward Command Post�
Indictment
Amended Indictment by the Prosecutor of The Tribunal
Against Radislav Krstic, 27 October 1999.
MUP
Ministry of the Interior of the Republika Srpska
OTP/Prosecution
Office of the Prosecutor
p.
Page
pp.
Pages
para.
Paragraph
paras.
Paragraphs
Rules
Rules of Procedure and Evidence of the ICTY in force
P
Denotes a Prosecution Exhibit (Exh.P)
Statute
The Statute of the International Tribunal for the Former
Yugoslavia established by Security Council Resolution 827
T
Transcript page from hearings before the Trial Chamber.
All transcript page numbers referred to are from the unofficial,
uncorrected
version of the transcript, unless not specified otherwise. Minor differences
may therefore exist
between the pagination therein and that of the final
transcript released to the public.
Tribunal
See: ICTY
UN
United Nations
Vol
Volume
VRS
Bosnian Serb Army
[1] - Trial Judgement, paras.
6 et seq: �The Take-over of Srebrenica and its Aftermath.� [2] - Ibid., para. 52. [3] - Ibid., para. 84. [4] - The latter challenge is examined in Part
III of this Judgement, which considers whether the Trial Chamber was correct
to
find that the facts of this case supported the charge of genocide. [5] - Article II of the Genocide Convention.
[6] - Indictment, para. 21. [7] - See Trial Judgement, para. 558
(�the indictment in this case defined the targeted group as the Bosnian Muslims�).
[8] - Ibid., paras. 559 - 560. [9] - See Defence Appeal Brief, paras.
28, 38. [10] - Jelisic Trial Judgement, para.
82 (citing Report of the International Law Commission on the Work of its Forty-Eighth
Session, 6 May
� 26 July 1996, G.A.O.R., 51st session, Supp. No. 10 (A/51/10)
1996 , p. 89; Nehemiah Robinson, The Genocide Convention: A Commentary
1960 (1st ed. 1949), p. 63; Genocide Convention, Report of the Committee
on Foreign Relations, U.S. Senate, 18 July 1981), p. 22). The Jelisic
Trial Judgement was reversed in part by the Appeals Chamber on other grounds.
See Jelisic Appeal Judgement, para. 72. The Trial Chamber�s definition
of what constitutes an appropriate part of the group protected by the
Genocide
Convention was not challenged. [11] - Sikirica Judgement on Defence
Motions to Acquit, para. 65. [12] - Jelisic Trial Judgement, para.
82; Sikirica Judgement on Defence Motions to Acquit, para. 77. [13] - See Art. 2 of the ICTR Statute
(defining the specific intent requirement of genocide as the �intent to destroy,
in whole or in
part, a national, ethnical, racial or religious group, as such�).
[14] - Kayishema and Ruzindana Trial
Judgement, para. 97. [15] - See Bagilishema Trial Judgement,
para. 64 (�the intention to destroy must target at least a substantial part
of the group�) (citing Kayishema and Ruzindana TrialJudgement, para.
97); Semanza Triall Judgement and Sentence, para. 316 (�The intention
to destroy must be, at least, to destroy a substantial part of the group�)
(citing
Bagilishema Trial Judgement, para. 64). While Kayishema used
the term �considerable number� rather than �substantial part,� Semanza
and Bagilishema make it clear that Kayishema did not intend
to adopt a different standard with respect to the definition of the term �a
part.� The standard adopted by the
Trial Chambers of the ICTR is therefore consistent
with the jurisprudence of this Tribunal. [16] - 2 Executive Sessions of the Senate
Foreign Relations Committee, Historical Series 1976 , p. 370; see also
Jelisic Trial Judgement, para. 82; William A. Schabas, Genocide
in International Law 2000 , p. 238. [17] - Ibid., cited in William
A. Schabas, Genocide in International Law 2000 , p. 238. [18] - Nehemia Robinson, The Genocide
Convention: A Commentary 1960 , pp. 63. [19] - Ibid., p.58. [20] - Report of the International Law Commission
on the Work of Its Forty-Eighth Session, 6 May � 26 July 1996, p. 89. The Draft
Code of Crimes Against the Peace and Security of Mankind, adopted by the International
Law Commission, contains a prohibition
of the offence of genocide substantively
similar to the prohibition present in the Genocide Convention. The Draft code
is not
binding as a matter of international law, but is an authoritative instrument,
parts of which may constitute evidence of customary
international law, clarify
customary rules, or, at the very least, �be indicative of the legal views of
eminently qualified
publicists representing the major legal systems of the world.�
Furundzija Trial Judgement, para. 227. [21] - Benjamin Whitaker, Revised and Updated
Report on the Question of the Prevention and Punishment of the Crime of Genocide,
U.N. Doc. E/CN.4/Sub.2/1985/6, para. 29 (��In part� would seem to imply a reasonably
significant number, relative to the total
of the group as a whole, or else a
significant section of a group, such as its leadership.�); see also
Jelisic Trial Judgement, para. 65 (quoting the report); Trial Judgement,
para. 587 (same). [22] - The Trial Chambers in Jelisic
and Sikirica referred to this factor as an independent consideration
which is sufficient, in and of itself, to satisfy the requirement of substantiality.
See Jelisic Trial Judgement, para. 82; Sikirica Trial Judgement,
para. 65. Properly understood, this factor is only one of several which may
indicate whether the substantiality
requirement is satisfied. [23] - For a discussion of these examples,
see William A. Schabas, Genocide in International Law 2000 , p. 235.
[24] - Trial Judgement, para. 560 �The Chamber
concludes that the protected group, within the meaning of Article 4 of the Statute,
must be defined, in the present case, as the Bosnian Muslims. The Bosnian Muslims
of Srebrenica or the Bosnian Muslims of Eastern
Bosnia constitute a part of
the protected group under Article 4.�). See also Trial Judgement, para.
591. Although the Trial Chamber did not delineate clearly the interrelationship
between these two alternative
definitions, an explanation can be gleaned from
its Judgement. As the Trial Chamber found, �most of the Bosnian Muslims residing
in Srebrenica at the time of the [Serbian] attack were not originally from Srebrenica
but from all around the central Podrinje
region.� Trial Judgement, para. 559;
see also ibid., para. 592 (speaking about �the Bosnian Muslim
community of Srebrenica and its surrounds�). The Trial Chamber used the term
�Bosnian Muslims of Srebrenica� as a short-hand for the Muslims of both Srebrenica
and the surrounding areas, most of whom had,
by the time of the Serbian attack
against the city, sought refuge with the enclave. This is also the sense in
which the term
will be used in this Judgement. [25] - While the Trial Chamber did not make
a definitive determination as to the size of the Bosnian Muslim community in
Srebrenica,
the issue was not in dispute. The Prosecution estimated the number
to be between 38,000 and 42,000. See Trial Judgement, para. 592. The
Defence�s estimate was 40,000. See ibid ., para. 593. [26] - The pre-war Muslim population of the
municipality of Srebrenica was 27,000. Trial Judgement, para. 11. By January
1993,
four months before the UN Security Council declared Srebrenica to be a
safe area, its population swelled to about 50,000 � 60,000,
due to the influx
of refugees from nearby regions. Ibid., para. 14. Between 8,000 and 9,000
of those who found shelter in Srebrenica were subsequently evacuated in March
� April 1993
by the UN High Commissioner for Refugees. Ibid., para. 16.
[27] - The Muslim population of Bosnia and
Herzegovina in 1995, when the attack against Srebrenica took place, was approximately
1,400,000. See http://www.unhabitat.org/habrdd/conditions/southeurope/bosnia.htm,
accessed 26/03/2004 (estimating that the Muslims constituted
40 percent of the
1995 population of 3,569,000). The Bosnian Muslims of Srebrenica therefore formed
about 2.9 percent of the
overall population. [28] - Trial Judgement, para. 12; see
also para. 17. [29] - Security Council Resolution 819, UN
Doc. S/RES/819 1993 , quoted in Trial Judgement, para. 18 & n. 17. The two
other protected
enclaves created by the Security Council were �epa and Gorazde.
See Security Council Resolution 824, UN Doc. S/RES/824 1993 ; Trial
Judgement, para. 18 & n. 18. [30] - Trial Judgement, paras. 15, 19 - 20.
[31] - Defence Appeal Brief, paras. 38 - 39.
[32] - Ibid., para. 40. [33] - Ibid. [34] - Trial Judgement, paras. 560, 561. [35] - Defence Appeal Brief, para. 40 quoting
Trial Judgement, para. 634) (internal quotation marks omitted). [36] - See, e.g. , para. 581 �Since
in this case primarily the Bosnian Muslim men of military age were killed, a
second issue is whether this
group of victims represents a sufficient part of
the Bosnian Muslim group so that the intent to destroy them qualifies as an
�intent to destroy the group in whole or in part� under Article 4 of the Statute.�);
para. 634 (�[T]he Trial Chamber has concluded
that, in terms of the requirement
of Article 4 2 of the Statute that an intent to destroy only part of the group
must nevertheless
concern a substantial part thereof, either numerically or
qualitatively, the military aged Bosnian Muslim men of Srebrenica do
in fact
constitute a substantial part of the Bosnian Muslim group, because the killing
of these men inevitably and fundamentally
would result in the annihilation of
the entire Bosnian Muslim community at Srebrenica.�). [37] - Defence Appeal Brief, para. 43. [38] - Ibid., paras. 46 - 47. [39] - The International Law Commission, when
drafting a code of crimes which it submitted to the ICC Preparatory Committee,
has
examined closely the travaux pr�paratoires of the Convention in
order to elucidate the meaning of the term �destroy� in the Convention�s description
of the requisite intent.
The Commission concluded: �As clearly shown by the
preparatory work for the Convention, the destruction in question is the material
destruction of a group either by physical or by biological means, not the destruction
of the national, linguistic, cultural
or other identity of a particular group.�
Report of the International Law Commission on the Work of its Forty-Eighth Session,
6 May � 26 July 1996, G.A.O.R., 51st session, Supp. No. 10 (A/51/10) 1996 ,
pp. 90-91. The commentators agree. See, e.g. , William A. Schabas, Genocide
in International Law 2000 , p. 229 (concluding that the drafting history
of the Convention would not sustain a construction of the genocidal intent
which
extends beyond an intent at physical destruction). [40] - Trial Judgement, para. 580. See
also ibid., para. 576 (discussing the conclusion of the International Law Commission,
quoted in note 39, supra). [41] - Trial Judgement, para. 594. [42] - Ibid., para. 593. [43] - Ibid., paras. 547, 594. [44] - Ibid., para. 75 & n. 155. [45] - Ibid., n. 3. [46] - See ibid ., paras. 592 - 594
(finding, on the basis of the parties� estimates, the number of the killed men
to be approximately 7,500
and the overall size of the Srebrenica community,
augmented by refugees from the surrounding areas, to be approximately 40,000).
[47] - Ibid., para. 595. [48] - See ibid ., para. 93 & notes
195, 196. [49] - Ibid., para. 595. [50] - Defence Appeal Brief, paras. 53 - 57.
[51] - Ibid., para. 53. [52] - Trial Judgement, para. 595. [53] - See Stakic Trial Judgement,
para. 519 & nn. 1097 - 1098 (citing K. Kre�, M�nchner Kommentar zum StGB,
Rn 57, section 6 VStGB 2003 ; William A. Schabas, Genocide in International
Law 2000 , p. 200; BGH v. 21.2.2001 � 3 StR 244/00, NJW 2001, 2732 2733 ).
[54] - Jelisic Appeal Judgement,
para. 47. [55] - Defence Appeal Brief, paras. 74-77.
[56] - Jelisic Appeal Judgement,
para. 47; see alsoRutaganda Appeal Judgement, para. 528. [57] - Trial Judgement, paras. 591 - 599.
[58] - Appellant Appeal Brief, paras. 84 -
101. [59] - Krnojelac Appeal Judgement,
para. 11. [60] - Ibid., para. 12; Tadic
Appeal Judgement, para. 64; Celebici Appeal Judgement, para. 434; Aleksovski
Appeal Judgement, para. 63. [61] - Krnojelac Appeal Judgement,
paras. 13, 39; Vasiljevic Appeal Judgement, para. 8 [62] - Vasiljevic Appeals Judgement,
para.�121; see also Vasiljevic Judgement, para.�68; Krnojelac
Judgement, para.�83. [63] - Trial Judgement, paras. 633, 644. [64] - Defence Appeal Brief, paras. 204 -
210. [65] - Ibid., paras. 176 - 203. [66] - Ibid., paras. 157 - 175. [67] - Ibid., para. 143, 154. [68] - Ibid., paras. 328 - 331, 625.
[69] - Defence Appeal Brief, para. 205. [70] - Ibid., para. 206. [71] - Ibid., paras. 207 - 208. [72] - Trial Judgement, paras. 312 - 315.
[73] - Ibid., paras. 329, 317. [74] - Ibid., para. 330. [75] - T, pp.�406 - 407, Annex�7. [76] - Defence Appeal Brief, paras. 197 -
198. [77] - Ibid., para. 177. [78] - Trial Judgement, paras. 88 - 89. [79] - Defence Appeal Brief, para. 177. [80] - Ibid., paras. 179 - 180. [81] - Ibid., paras. 178 - 185. [82] - Trial Judgement, para. 168. [83] - Ibid., para. 289. [84] - Ibid., paras. 268. [85] - Ibid., paras. 168 - 178,�377.
[86] - Ibid., para. 186. [87] - Defence Appeal Brief, para. 188. [88] - Exh. P364/2, tab 14/2; Trial Judgement,
para. 194. [89] - Exh. P649; Trial Judgement, paras.
195, 264. [90] - Trial Judgement, para. 192 - 193. [91] - Exh. P609. [92] - Trial Judgement, paras. 265 - 272.
[93] - Ibid., para. 265. [94] - Ibid., para. 266. [95] - Defence Appeal Brief, paras. 183 -
184. [96] - Ibid., para. 184 - 185. [97] - Ibid., paras. 187 - 191, 239.
[98] - Ibid., para. 181. [99] - Ibid., para. 268. [100] - Ibid., para. 269. [101] - Ibid., paras. 269 - 270. [102] - Ibid., para. 270. [103] - Defence Appeal Brief, para. 198.
[104] - Exh. D160; D158. [105] - Rule 115 Defence Motion to Present
Additional Evidence, 10 January 2003, paras. 7 - 10; Annex Tabs 1 - 3. [106] - AT, p. 190. [107] - Trial Judgement, para. 362. [108] - See Section III.B.1a of
this Judgement. [109] - T, p.�407. [110] - Trial Judgement, para. 158. [111] - Defence Appeal Brief, paras. 157
- 164. [112] - Ibid., paras. 165 - 169. Regarding
the column, see also paras. 60 et seq. [113] - Ibid., para. 169. [114] - Trial Judgement, para. 239. [115] - Ibid., para. 244. [116] - Testimony of Richard Butler pursuant
to the Order of the Appeals Chamber granting the Appellant�s Oral Rule 115 Motion,
24 November 2003 (�Butler Report�), T, p.�4617. [117] - Ibid., T, p.�4621. [118] - Ibid., T, pp.�4171 - 4718.
[119] - Trial Judgement, paras. 240, 246.
[120] - Ibid., para. 240. [121] - Defence Appeal Brief, paras. 165
- 166. [122] - Trial Judgement, para. 401. [123] - AT, pp. 217 - 221; the relevant evidence
is at Prosecutor v. Vidoje Blagojevic and Dragan Jokic, Case No. IT-02-60-T,
Transcript of hearing dated 14 November 2003, page 4608 et seq. [124] - Butler Report, T, pp.�4615 - 4616.
[125] - Trial Judgement, para. 401. [126] - Defence Appeal Brief., paras.�174
- 175. [127] - Trial Judgement, para. 380. [128] - Ibid., para. 382. [129] - Ibid., paras. 385, 387. [130] - Ibid., par�383. [131] - Ibid., n.�1015 citing T�483.
[132] - Defence Appeal Brief, para. 96. [133] - Ibid., para. 97. [134] - Trial Judgement, para. 2. [135] - Ibid., para. 407. [136] - Ibid. [137] - Ibid., para. 339. [138] - Ibid., para. 343. [139] - Ibid, para.�126. [140] - Ibid., para. 130. [141] - Ibid. [142] - Ibid., para. 156. [143] - Ibid, para 130. [144] - Ibid, para 132. [145] - Ibid. [146] - T, p.�401. [147] - Appeal Proceedings, Friday 21�November
2003, T, pp.�101 - 174. [148] - Trial Judgement, paras. 352 - 354.
[149] - Ibid., para. 354. [150] - Ibid., para. 367. [151] - Ibid. [152] - Ibid., para. 58. [153] - Ibid., paras. 160, 367. [154] - Ibid., para. 368. [155] - Ibid., para. 369. [156] - Ibid. [157] - Ibid., para. 183. [158] - Ibid., para. 295. [159] - Ibid., para. 363. [160] - Ibid., para. 156. [161] - Ibid., para. 70. [162] - Ibid., para. 296. [163] - Ibid., para. 379. [164] - Ibid., para. 400. [165] - Ibid., para. 408. [166] - Ibid., paras. 380 - 387, 408.
[167] - Ibid., para. 381. [168] - Ibid., para. 384. [169] - Ibid., para. 423. [170] - Trial Judgement, para. 382. [171] - Ibid., para. 423. [172] - T, pp. �340 - 341. [173] - Butler Report. [174] - Trial Judgement, para. 408. [175] - Ibid., para. 385. [176] - Major Obrenovic was subsequently
promoted to the rank of Lieutenant-Colonel. [177] - Ibid., paras. 388 - 389. [178] - Ibid., para. 389. [179] - Ibid., para. 390. [180] - Ibid., para. 392. [181] - Ibid., para. 393. [182] - Ibid., para. 390. [183] - Trial Judgement, para. 395. [184] - Ibid., para. 396. [185] - Appeal Hearing, Thursday 27 November
T, p.�421. [186] - Trial Judgement, paras. 388 - 399,
411. [187] - Ibid., para. 397. [188] - Ibid., para. 409 - 410. [189] - Ibid., para. 242. [190] - Ibid., paras. 400 - 410. [191] - Ibid., para. 403. [192] - Ibid., para. 400. [193] - Ibid., paras. 283 - 289, 375
- 377. [194] - Ibid., para. 143. [195] - Trial Judgement, para. 177, read
with paras 215, 446, 624.. [196] - His evidence at the Appeal hearing
was that he had reported to President Karadzic �about the incidents in connection
with
the detained or captured Muslims that I was aware of up until that time
that is in the 14th in the morning. A major incident or
a major tragedy that
occurred on the 13th in the evening was the killing of a large number of Muslims
in the agricultural farm
in Kravica. Muslims were held there, and I received
this information from the ground � or the Muslims who had surrendered � And
an incident broke out between the army of the Republika Srpska, members of the
police, the special police forces, and those
captured Muslims. A killing occurred
of several Serb policemen � one, actually � and several were wounded in this
clash. And
then the policeman or the soldiers, whoever was there � took their
revenge on those captured, and according to the information
passed on to me
by Mr. Borov~anin, about 300 men were killed.� AT, p.�124 [197] - T, pp.�2527 - 2259, Annex B-32. [198] - AT, p. 124 � 125. [199] - Annex�3, Evidence of Nikolic T,
p.�402). [200] - Trial Judgement, paras. 195 - 204.
[201] - Ibid., para. 215. [202] - Ibid., paras. 220 - 225. [203] - Ibid., para. 224. [204] - Ibid., para. 225. [205] - Ibid., para. 232. [206] - Ibid., paras. 239 - 243. [207] - Ibid., para. 246. [208] - Ibid., paras. 252 - 253. [209] - Ibid., paras. 254 - 256. [210] - Ibid., paras. 257 - 261. [211] - Ibid., para. 296. [212] - Ibid., para. 418. [213] - Ibid., para. 633. [214] - Ibid., para. 336. [215] - Ibid., para. 420. [216] - Ibid. [217] - Ibid., para. 358. [218] - Ibid., para. 359. [219] - Ibid., para. 360. [220] - Ibid., para. 374. [221] - Ibid., para. 290. [222] - Ibid., para. 378. [223] - Ibid., para. 416. [224] - Ibid., para. 416, 417. [225] - Ibid., para. 417. [226] - See Krnojelac Appeal Judgement,
para. 52; Vasiljevic Appeal Judgement, para. 102. [227] - Indictment, paras. 18, 23. [228] - Indictment, paras. 21 - 26. The Appeals
Chamber notes that there was ample discussion on the issue of aiding and abetting
versus complicity to genocide during the Appeals hearing, in response to questions
posed by the bench. T�431-437. [229] - Trial Judgement, paras. 642 � 644.
[230] - See ibid ., para. 640; see
alsoSemanza Triall Judgement, paras. 394 - 395 & n. 655. [231] - See Stakic Trial Judgement,
para. 531; Stakic Decision on Rule 98 Bis Motion for Judgement of Acquittal,
para. 47; Semanza Triall Judgement, paras. 394 � 395. [232] - See Stakic Trial Judgement,
para. 531; Stakic Decision on Rule 98 Bis Motion for Judgement of Acquittal,
para. 47. [233] - See Krnojelac Appeal Judgement,
para. 70 (�The Appeals Chamber notes first of all that, in the case-law of the
Tribunal � this term [accomplice] has different meanings depending
on the context and may refer to a co-perpetrator or an aider and
abettor.�) (citing Tadic Appeal Judgement, paras. 220, 229). [234] - In this Appeal, the Appeals Chamber
is concerned solely with the application to Article�4 3 of only one mode of
liability
deriving from Article�7 1 , that of aiding and abetting. The Appeals
Chamber expresses no opinion regarding other modes of liability
listed in Article�7 1 .
[235] - See Krnojelac Appeal Judgement,
para. 52 (�the aider and abettor in persecution, an offence with a specific
intent, must be aware . . . of
the discriminatory intent of the perpetrators
of that crime,� but �need not share th[at] intent�); Vasiljevic Appeal
Judgement, para. 142 (�In order to convict [the accused] for aiding and abetting
the crime of persecution, the Appeals
Chamber must establish that ?heg had knowledge
that the principal perpetrators of the joint criminal enterprise intended to
commit the underlying crimes, and by their acts they intended to discriminate
. . . .�); see also Tadic Appeal Judgement, para. 229 (�In
the case of aiding and abetting, the requisite mental element is knowledge that
the acts performed
by the aider and abettor assist the commission of a specific
crime by the principal.�). [236] - Code P�nal, Art. 121-7 �Est
complice d'un crime ou d'un d�lit la personne qui sciemment, par aide ou assistance,
en a facilit� la pr�paration
ou la consommation.�); see also Cour de
Cassation, Chambre criminelle, 1st October 1984, summary 96. [237] - Code P�nal, Art. 211-1.
[238] - See section 27 1 of the
German Penal Code (Strafgesetzbuch). According to section 2 of the
German Code of Crimes Against International Law (CCIL), section 27 1 of the
German Penal Code
is applicable to crimes of genocide. See Albin Eser
& Helmut Kreicker, Nationale Strafverfolgung V�lkerrechtlicher Verbrechen (Freiburg
2003), Vol. I, pp. 107, 108.
[239] - With the implementation of the Statute
of the International Criminal Court (ICC) in Germany, Section 6 of the CCIL
recently
replaced former � 220a of the German Penal Code. See Gerhard
Werle & Florian Jessberger International Criminal Justice Is Coming Home:
The New German Code of Crimes Against International Law,� Criminal Law
Forum 13, 2002 , pp. 201 - 202. The new provision is substantively similar.
See ibid ., pp. 191 � 223. This article also provides a full reprint
of the CCIL in English. The text is also available, both in English
and in several
other languages, at http://www.iuscrim.mpg.de/forsch/online_pub.html. [240] - See Arts. 25, 65 of the
Swiss Criminal Code (Schweizerisches Strafgesetzbuch) (�La peine pourra
�tre att�nu�e (art 65) � l��gard de celui qui aura intentiollement pr�t� assistance
pour commetre un crime
ou un d�lit.�); see also Judgement of the Swiss
Federal Supreme Court (Schweizerisches Bundesgericht) of 17 February
1995, Decisions of the Swiss Federal Supreme Court (Bundesgerichtsentscheide,
121 IV, pp. 109, 120. [241] - See, e.g. , National Coal
Board v. Gamble 1959 1 Q.B. 11. [242] - See Schedule 8, Art. 6 of
the International Criminal Court Act of 2001 (specifying that a determination
of liability in aiding
and abetting genocide follows the general regulations
of Section 8 of the Accessories and Abettors Act of 1861). The approach
was
the same under the pre-ICC English law. See Genocide Act of 1969 (replaced
by the International Criminal Court Act on 31 August 2001); Official Report,
Fifth Series, Parliamentary
debates, Commons 1968-69, Vol. 777, 3 - 14 February
1969, pp. 480-509 (explaining that secondary liability with respect to genocide
will be governed by the general principles of the English criminal law). [243] - See Dunlop and Sylvester v. Regina
1979 2 S.C.R. 881 (Supreme Court of Canada) (�one must be able to infer that
the accused had prior knowledge that an offence
of the type committed was planned�);
Giorgianni 1985 58 A.L.R. 641 (High Court of Australia) (relying on National
Coal Board
to hold that, to �be convicted of aiding, abetting, counselling or
procuring the commission of an offence,� the accused must �know
� all the essential
facts which made what was done a crime�). [244] - See Candace Courteau, Note,
The Mental Element Required for Accomplice Liability, 59 La. L. Rev.
325, 334 1998 (while the majority of federal and state jurisdictions in the
United States require a showing
that an aider and abettor shared the principal
perpetrator�s intent, some states still find knowledge to be sufficient). [245] - The same analysis applies to the
relationship between Article II of the Genocide Convention, which contains the
requirement
of specific intent, and the Convention�s Article III, which lists
the proscribed acts, including that of complicity. [246] - William Schabas, Genocide in
International Law, at 289 2000 (quoting UN Doc. A/C.6/236 & Corr. 1;
UN Doc. A/C.6/SR.87). [247] - As it is not at issue in this case,
the Appeals Chamber takes no position on the mens rea requirement for the conviction
for the offence of complicity in genocide under Article 4 3 of the Statute
where this offense strikes broader than the prohibition
of aiding and abetting.
[248] - See, e,g., Krnojelac
Trial Judgement, paras. 489-490 (finding a defendant liable for having
aided and abetted the crime of persecution, which requires
the specific intent
to discriminate, where the principal perpetrators of the crime were not identified).
Although the Appeals
Chamber, on unrelated grounds, increased the defendant�s
level of responsibility to that of a co-perpetrator, it rejected the
defendant�s
appeal against his conviction as an aider and abettor. SeeKrnojelac
Appeal Judgement, paras. 35-53. See also Stakic Trial Judgement,
para. 534 (stating that �an individual can be prosecuted for complicity even
where the perpetrator has not
been tried or even identified�) (citing Musema
Trial Judgement, para. 174); Akayesu Trial Judgement, para. 531 (same).
[249] - See Vasiljevic Trial Judgement,
para. 143. [250] - In entering a conviction against
General Krstic as a participant in a joint criminal enterprise to commit genocide
under
Article�7 1 the Trial Chamber stated that he could also bear responsibility
as a Commander pursuant to Article�7 3 . The Trial
Chamber concluded, however,
that a conviction under Article�7 1 sufficiently expressed General Krstic�s
criminality. Trial
Judgement, para. 652. The Appeals Chamber�s determination
that General Krstic is responsible as an aider and abettor is also based
on
Article 7 1 . Even if General Krstic is also found to be responsible as a Commander,
the Appeals Chamber concludes, as did
the Trial Chamber, that the mode of liability
under Article 7 1 best encapsulates General Krstic�s criminality. This is because
the most he could have done as a Commander was to report the use of his personnel
and assets, in facilitating the killings,
to the VRS Main Staff and to his superior,
General Mladic, the very people who ordered the executions and were active participants
in them. Further, although General Krstic could have tried to punish his subordinates
for their participation in facilitating
the executions, it is unlikely that
he would have had the support of his superiors in doing so. See Krnojelac
Trial Judgement, para.�127; not disturbed on appeal, see Krnojelac
Appeal Judgement. [251] - Defence Appeal Brief, paras. 143
- 156. [252] - Ibid., para. 154;�Exh. D432.
[253] - Ibid., para. 154; Trial Testimony
of Drazen Erdemovic, T, p. 3083 (14 April 2000). [254] - Ibid., para. 154, Trial Judgement
para. 358. [255] - Ibid. [256] - Trial Judgement, paras. 355, 337.
[257] - Trial Judgement, para. 335. [258] - Trial Judgement, paras. 339-343.
[259] - Trial�Judgement, paras. 350-354.
[260] - Trial�Judgement, para.�344 � 345,
347. [261] - Ibid., para.�358. [262] - Ibid., para. 616. [263] - Defence Appeal Brief, para. 208.
[264] - Ibid., paras. 102 - 142. [265] - Blaskic Decision on the
Appellant�s Motion for the Production of Material, para. 38. See alsoAkayesu Appeal Judgement, para. 340. [266] - Brdjanin Decision on Motion
for Relief from Rule 68 Violations by the Prosecutor. [267] - For example, where the Defence knew
of the existence of the non-disclosed evidence, prejudice cannot be shown. In
the Blaskic Decision on the Appellant�s Motions for the Production
of Material, Suspension or Extension of the Briefing Schedule, and Additional
Filings, it was held that �the Prosecution may still be relieved of the obligation
under Rule 68, if the existence of the relevant
exculpatory evidence is known
and the evidence is accessible to the appellant, as the appellant would not
be prejudiced materially
by this violation.� [268] - Rule 65ter has since been
amended. [269] - Prosecution�s Response to Motion
for Production of Evidence, 10 December 2001, para. 41; incorporated by reference
into
the Prosecutor�s Response Appeal Brief at para. 3.51. [270] - Transcript of Pre-Trial Conference
(6 March 2000), pp. 398 - 400. [271] - Presumably the pre-trial judge was
referring to Rule 67, and not Rule 68 as stated in the transcript. [272] - Transcript of Pre-Trial Conference
(6 March 2000), pp. 398 - 400. [273] - Defence Appeal Brief, paras. 105
and 107. [274] - Ibid. [275] - Krajisnik & Plavsic Decision
on Prosecution Motion for Clarification in Respect of Application of Rules 65ter,
66(B) and 67(C). [276] - Krajisnik & Plavsic, paras.
7 and 8. [277] - The amendment entered into force
on 28 December 2001. [278] - Rule 65terEiii: �The
Prosecutor shall serve on the defence copies of the exhibits � listed.� [279] - Defence Appeal Brief, para. 106.
[280] - Krajisnik & Plavsic, para.
7. [281] - Ibid, para. 8. [282] - Prosecution Response, paras. 3.27
- 3.37. While this agreement governed military documents for which admission
as evidence
was sought, that category of evidence constituted a substantial
part of the Prosecution�s case. [283] - As noted by the Prosecution in its
Response to the Defence Appeal Brief, para. 3.28. [284] - Prosecution Response, para. 3.36.
[285] - Ibid. [286] - Ibid. [287] - Defence Appeal Brief, paras. 118
- 119. [288] - The tape had been disclosed to the
Defence the day before it was used at trial. See Prosecution�s Response,
para. 3.44, citing T. 6799. [289] - Prosecution Response, para. 3.45.
[290] - Defence Appeal Brief, para. 110 -
123. [291] - Ibid., para. 121. [292] - Decision on the Defence Motions to
Exclude Exhibits in Rebuttal Evidence and Motion for Continuance (confidential),
25 April
2001; references are to the public version of 4 May 2001. This Decision
was made after hearing nine witnesses testify about the
evidence in rebuttal,
and after considering thirty exhibits relating to the conversation and hearing
it played multiple times
in court. See Defence Appeal Brief, para.
120. [293] - See Akayesu Appeal Judgement,
para. 343. [294] - Akayesu Appeal Judgement,
paras. 341 - 344. [295] - Ibid. [296] - Defence Appeal Brief, paras. 122
- 123. [297] - In the Prosecution Response at paragraph
3.50, the Prosecution submitted that no Rule at that time precluded it from
introducing
the tape solely for the purpose of impeachment. Rule 65ter(E) applies
only to exhibits and not to evidence submitted for the purposes
of impeachment.
[298] - Defence Appeal Brief, para. 113.
[299] - Decision on the Defence Motions to
Exclude Exhibits in Rebuttal Evidence and Motion for Continuance (confidential),
25 April
2001, public version 4 May 2001. [300] - Ibid., paras. 10 � 13. [301] - See Defence Rule 68 Brief, para.
1. On 30 November 2001, the Defence filed its Motion for Production of Evidence,
30 November
2001, seeking the production of material which it alleged the Prosecution
should have disclosed to it at trial under Rule 68.
Following this motion, a
number of filings were made by each party on the issue (see Annex A, Procedural
Background). A number
of reports updating the status of disclosure were also
filed by the parties after they had reached an agreement: Prosecution�s
Status
Report (partly confidential), 28 July 2003; Status Report (filed by the Prosecution,
partly confidential), 17 March
2003; Prosecution�s Status Report on Disclosure
as of November 2002, 14 November 2002; Second Status Report on Appellant�s Request
for Deferral of Decision on Motion for Production of Evidence, 4 June 2002;
Prosecution�s Status Report on Disclosure, signed
5 June 2002, filed 6 June
2002; Status Report on Appellant�s Request for Deferral of Decision on Motion
for Production of Evidence,
signed 19 March 2002, filed 20 March 2002. The additional
disclosure by the Prosecution culminated in the Defence filing a motion
for
the admission of additional evidence on appeal pursuant to Rule 115 (Rule 115
Defence Motion to Present Additional Evidence,
10 January 2003; Supplemental
Rule 115 Defence Motion to Present Additional Evidence, filed confidentially
20 Jan 2003; Defence
Addendum to Rule 115 Motion with Request for Authorisation
to Exceed Page Limit on the Rule 115 Motion, filed confidentially 27
January
2003; Defence Addendum to Rule 115 Motion with Request for Authorisation to
Exceed the Page Limit in the Rule 115 Motion
Filed on 27 January 2003, public
version filed on 12 February 2003; Defence Reply to the Prosecution�s Response
to Defence
Motions for Additional Evidence Under Rule 115, filed confidentially
on 12 February 2003; Supplemental Rule 115 Motion to Present
Additional Evidence,
filed confidentially on 12 February 2003; Rule 115 Defence Motion to Present
Additional Evidence Filed
on 10 January 2003, public version filed on 12 February
2003.) It was in that motion that the Defence made submissions relating
to violations
of Rule 68. The parties subsequently agreed (Status Conferences, 27 August 2002,
Transcript p. 43; 25 November
2002, Transcript pp. 58 - 59, 65, 67 - 68; 19
March 2003, Transcript, pp. 79 - 80) that allegations relating to Rule 68 and
the fairness of the trial should be dealt with separately from the Rule 115
motion. In accordance with this agreement, the Defence
confidentially filed
its �Defence Appeal Brief Concerning Rule 68 Violations,� on 11 April 2003 (�Defence
Rule 68 Brief�) to
which the Prosecution responded confidentially in its Response
to Defence Appeal Brief Concerning Rule 68 Violations, 8 May 2003
(�Prosecution
Rule 68 Brief�). [302] - Prosecution Rule 68 Brief, para.
2.1; See para. 3.9 where the Prosecution specifies that six statements
rather than five contain Rule 68 materials. [303] - Ibid. [304] - Celebici Decision on the
Request of the Accused Hazim Delic Pursuant to Rule 68, para. 12. [305] - Decision on Prosecution�s Extremely
Urgent Request for Variation of Orders Regarding Private Session Testimony,
14 November
2003. [306] - Krstic Decision on Prosecution�s
Motion to Be Relieved of Obligation to Disclose Sensitive Information Pursuant
to Rule 66(C), 27
Mar 2003, p 4; Kordic & Cerkez Decision on Motion
by Dario Kordic for Access to Unredacted Portions of October 2002 Interviews
with Witness �AT�, para. 24.
[307] - Prosecution Rule 68 Brief, para.
2.7. [308] - Ibid., para. 2.15, citing
United States v Comosona, 848 F. 2d 1110 (10th Cir 1988) at p. 1115.
[309] - Krstic Decision on Applications
for Admission of Additional Evidence on Appeal. [310] - Defence Rule 68 Brief, para. 27.
[311] - Rule 115 Reasons, para. 43. [312] - Defence Rule 68 Brief, para. 28.
[313] - Rule 115 Reasons, para. 50. [314] - Op cit., para. 54. [315] - Defence Rule 68 Brief, para. 29.
[316] - Ibid. [317] - Rule 115 Reasons, para. 56. [318] - Defence Rule 68 Brief, para. 37.
[319] - Rule 115 Reasons, para. 119. [320] - Defence Rule 68 Brief, para. 40,
citing the Blaskic Decision on the Defence Motion for Sanction�s for
the Prosecutor�s Continuing Violation of Rule 68. The Blaskic Decision
stated at p. 3 that �possible violations of Rule 68 are governed less by a system
of sanctions than by the judge�s
definitive evaluation of the evidence presented
by either of the parties, and the possibility which the opposing party will
have had to contest it.� [321] - For example, the evidence of Dragan
Obrenovic was admitted under Rule 115, while the evidence of other witnesses
whose statements
form the subject of this application was rejected. See
Krstic Decision on Applications for Admission of Additional Evidence on
Appeal, and Rule 115 Reasons, para. 3. [322] - Rule 115 Reasons. [323] - Defence Appeal Brief, para. 128.
[324] - Prosecution Response, para. 3.53.
[325] - Krajisnik & Plavsic Decision
on Motion from Momcilo Krajisnik to Compel Disclosure of Exculpatory Evidence
Pursuant to Rule 68, p. 2: �as a matter
of practice and in order to secure a
fair and expeditious trial, the Prosecution should normally indicate which material
it
is disclosing under the Rule and it is no answer to say that the Defence
are in a better position to identify it.� [326] - Defence Appeal Brief, para. 129.
[327] - Notably the disclosures of 25 June
2000 and 5 March 2001. [328] - Defence Appeal Brief, para. 129.
[329] - Ibid. [330] - Ibid., para. 129 et seq.
[331] - Prosecution Response, para. 3.59.
[332] - In its response at para. 3.60 the
Prosecution submits that, in relation to the 25 June 2000 disclosure, the Defence
had
24 days to examine the binders before commencement of cross examination,
and that any material not identified as exculpatory at
that stage could have
been introduced in the Defence�s case-in-chief. In relation to the 5 March 2001
disclosure, the Prosecution
submits that the material was disclosed 14 days
prior to the commencement of the Prosecution�s case in rebuttal and that the
Defence could have used the material in the Prosecution�s rebuttal or in its
own rejoinder, which began on 2 April 2001. [333] - See the discussion regarding
prejudice at paragraph 153 above. [334] - See the discussion under
Section E below. [335] - See inter alia Order for
a Witness to Appear, 13 December 2000; and Further Order for a Witness to Appear,
18 December 2000. [336] - See the Order on Prosecution�s
Motion to Lift Ex Parte Status of Meeting with the Trial Chamber on 11 January
2002, 7 March 2002
(confidential), in which the Pre-Appeal Judge granted the
Prosecution�s request to permit access to notes taken of the meeting
of 11 January
2001, at which meeting the Prosecution disclosed these circumstances to the
Trial Chamber. [337] - Hadzihasanovic et al. Indictment
(confidential). [338] - Halilovic Indictment. [339] - Defence Appeal Brief, para. 139.
[340] - Prosecution Response, p. 46. [341] - Ibid. , para. 3.72. [342] - Ibid., paras. 3.67 - 3.69.
[343] - Kordic & Cerkez Order on
Motion to Compel Compliance by the Prosecution with Rules 66 (A) and 68. [344] - Prosecution�s Response, para. 3.83.
[345] - T, pp. 9439 - 9505. [346] - Trial Judgement, paras. 613 - 615.
[347] - T, p. 9595 - 9617. [348] - Prosecution Response, para. 3.73.
See the Krstic Order to Appear and Order to Appear 2 . [349] - Further Response to Appellant�s 24
December 2001 Supplemental Reply, 11 March 2002; Prosecution Request for Leave
to File
a Further Response to �Defence Appeal Brief Concerning Rule 68 Violations�,
23 May 2003; Prosecution�s Further Response to the
Reply filed by Radislav Krstic
on 22 May 2003 Regarding Rule 68 Violations, 30 June 2003. [350] - Defence Response, para. 7. [351] - SeeKunarac et al.
AppealJudgement, para. 169; Mucic et al. Judgement on Sentence Appeal, para.
25. [352] - Kunarac et al. AppealJudgement,
para. 169. [353] - Celebici Appeal Judgement,
para. 412; see alsoJelisic Appeal Judgement, para. 78; Kupreskic
et al. Appeal Judgement, para. 387; Kunarac et al.Appeal Judgement,
para. 168; Vasiljevic Appeal Judgement, paras. 135, 146. This approach
has also been endorsed by the Appeals Chamber of the ICTR. See Musema
Appeal Judgement, para. 363. [354] - Celebici Appeal Judgement,
para. 412; see alsoJelisic Appeal Judgement, para. 78; Kupreskic
et al. Appeal Judgement, para. 387; Kunarac et al. AppealJudgement, paras.
168, 173. [355] - Celebici Appeal Judgement,
para. 413; see alsoJelisic Appeal Judgement, para. 79; Kupreskic
et al. Appeal Judgement, para. 387; Kunarac et al. AppealJudgement, para.
168. [356] - Prosecution Appeal Brief, paras.
1.6, 3.38. [357] - Trial Judgement, paras. 682, 685
- 686. [358] - Prosecution Appeal Brief, para. 3.34.
[359] - Musema Appeal Judgement,
para. 366. At the Appeal hearing, the Defence conceded that, under the reasoning
of Musema, convictions for extermination and genocide are not impermissibly
cumulative. See AT, p. 281. [360] - Trial Judgement, para. 682. [361] - Ibid. [362] - Ibid. [363] - Trial Judgement, para. 544; see
alsoJelisic Appeal Judgement, para. 46 (�The specific intent [of
genocide] requires that the perpetrator, by one of the prohibited acts enumerated
in Article 4 of the Statute, seeks to achieve the destruction, in whole or in
part, of a national, ethnical, racial or religious
group, as such.�) (footnote
omitted). [364] - Tadic Appeal Judgement, para.
248; see alsoKunarac et al. Appeal Judgement, paras. 85, 96,
102. [365] - See, e.g. , 1 The Rome
Statute of the International Criminal Court: A Commentary (Antonio Cassese,
Paola Gaeta, John R.W.D. Jones, eds, 2002), at p. 340 (under customary international
law, �it is only for
crimes against humanity [and not for genocide] that knowledge
of the widespread or systematic practice is required�). [366] - Trial Judgement, n. 1455 quoting
Report of the Preparatory Commission for the International Criminal Court, 6
July 2000,
PCNICC/2000/INF/3/Add.2). The Trial Chamber stated that this definition
was present in the Statute of the ICC; the definition,
of course, is given only
in the Elements of Crimes. There is a difference between the two. The Elements
of Crimes, adopted
by the Assembly of States Parties to the ICC pursuant to
Article 9 1 of the ICC Statute, are intended only to �assist the Court
in the
interpretation and application� of the substantive definitions of crimes given
in the Statute itself. See Elements of Crimes, General Introduction,
para. 1. Unlike the definitions present in the Statute, the definitions given
in
the Elements of Crimes are not binding rules, but only auxiliary means of
interpretation. See 1 The Rome Statute of the International Criminal
Court: A Commentary (Antonio Cassese, Paola Gaeta, John R.W.D. Jones, eds,
2002), at p. 348. Article 6 of the ICC Statute, which defines genocide,
does
not prescribe the requirement introduced in the Elements of Crimes. Ibid.,
at p. 349. [367] - See 1 The Rome Statute of the International Criminal Court: A Commentary
(Antonio Cassese, Paola Gaeta, John R.W.D. Jones, eds, 2002), at pp. 339 � 340,
348 - 350. [368] - Trial Judgement, para. 685. [369] - Jelisic Appeal Judgement,
para. 48. [370] - See ibid . [371] - Kunarac et al. Appeal Judgement,
para. 98 [372] - Ibid., para. 174. [373] - Prosecution Appeal Brief, paras.
1.6, 3.47. [374] - Trial Judgement, paras. 682 - 686.
[375] - Prosecution Appeal Brief, paras.
1.6, 3.49. [376] - Trial Judgement, para. 675. The Trial
Chamber�s Judgement is rather unclear as to what convictions the Chamber actually
entered. Two different sets of crimes were at issue in this case: the crimes
committed in Potocari between 11 and 13 July 1995,
and the crimes committed
against Bosnian Muslims of Srebrenica between 13 and 19 July 1995. With respect
to the first set,
the Trial Chamber stated, in the section on General Krstic�s
criminal responsibility, that he was guilty of inhumane acts of forcible
transfer
as a crime against humanity (Count 8) and of persecution as a crime against
humanity, carried out through murder,
forcible transfer and other means (Count
6). See ibid ., para. 653; see also ibid., para. 618 & notes
1367 - 1368. Notably absent was a finding of guilt for murder as a crime against
humanity (Count 4)
on the basis of the acts committed in Potocari. In the section
on cumulative convictions, however, the Trial Chamber suddenly
announced that
the murders committed at Potocari could �be legally characterised� as murders
under Article 5 (Count 4). See ibid ., para. 671. The Chamber then proceeded
to analyse whether this murder conviction was impermissibly cumulative with
the conviction
for persecution based on the same acts, eventually setting aside
the murder conviction. See ibid ., paras. 673, 675. Given that the Appeals
Chamber affirms the Trial Chamber�s conclusion that these convictions are impermissibly
cumulative, there is no need to decide whether General Krstic�s conviction for
murder as a crime against humanity based on
the acts committed in Potocari must
be vacated because he was, in fact, never found guilty of that crime by the
Trial Chamber.
[377] - Prosecution Appeal Brief, paras.
1.6, 3.80. [378] - Trial Judgement, para. 676. [379] - Vasiljevic Appeals Judgement,
paras. 135, 146. [380] - Ibid., para. 146. [381] - Krnojelac Appeal Judgement,
para. 188. The Prosecution argues that the Krnojelac Appeal Judgement
is not binding because the issue was adjudicated by the Appeals Chamber proprio
motu, and without the benefit
of briefing or argument. AT, p. 233. There is
no indication, however, that the Appeals Chamber in Krnojelac reached its decision
without due consideration of the issue. In any event, the conclusion reached
by the Krnojelac Appeals Chamber was subsequently re-affirmed in the
Vasiljevic Appeal Judgement, a decision which post-dates the appeal hearing
in this case. [382] - Prosecution Appeal Brief, paras.
3.54 - 3.55, 3.73 - 3.75. [383] - The jurisprudence of the United States
Supreme Court, on whose Blockburger test the Tribunal�s approach to
cumulative convictions is based, see Kunarac et al. Appeal Judgement,
para. 168, is instructive in this regard. In Ball v. United States,
470 U.S. 856 1985 , the U.S. Supreme Court examined the question of whether
convicting a felon for receiving a firearm and
possessing the same firearm was
impermissibly cumulative. Applying the Blockburger test, the court
easily concluded that the legislator �did not intend to subject felons to two
convictions [because] proof of
illegal receipt of a firearm necessarily
includes proof of illegal possession of that weapon.� Ibid., at 862.
[384] - Trial Judgement, para. 726. [385] - See Annex A, Procedural
Background. [386] - Prosecution Appeal Brief, section
4(A). [387] - Ibid., section 4B. [388] - Trial Judgement, para. 724, Prosecution
Appeal Brief, section 4(C). [389] - Trial Judgement, paras. 711 - 712,
Prosecution Appeal Brief, section 4(D). [390] - Prosecution Appeal Brief, para. 2.2,
citing the test established in the Kupreskic et al. Appeal Judgement.
[391] - Ibid., paras. 5.2 - 5.3. [392] - Defence Response to Prosecution Appeal
Brief, paras. 38 - 50; Trial Judgement, para. 697. [393] - Trial Judgement, paras. 713 - 716,
Defence Response to Prosecution Appeal Brief, para. 99. [394] - Defence Response to Prosecution Appeal
Brief, para. 100. [395] - Vasiljevic Appeal Judgement,
para. 149. [396] - Rule 101B. See also Celebici
Appeal Judgement, para. 716 (�These �general guidelines� amount to an obligation
on the Trial Chamber to take into account
aggravating and mitigating circumstances,
� the gravity of the offence, the individual circumstances of the convicted
person
and the general practice regarding prison sentences in the courts of
the former Yugoslavia.�). [397] - Celebici Appeal Judgement,
para. 780. See also Kambanda Appeal Judgement, para. 124 (while the
Trial Chamber is bound by the Rules to consider the mitigating factors, the
weight to
be accorded to those factors �is a matter for the discretion of the
Trial Chamber.�). [398] - Jelisic Appeal Judgement,
para. 101; see also Trial Judgement para. 700. [399] - See below. [400] - Celebici Appeal Judgement,
para. 715. See also Furundzija Appeal Judgement, para. 238. [401] - Vasiljevic Appeal Judgement,
para. 9. See also Jelisic Appeal Judgement, para. 99; Celebici
Appeal Judgement para. 725; Furundzija Appeal Judgement, para. 239;
Aleksovski Appeal Judgement, para. 187; Tadic Judgement in Sentencing
Appeals, para. 22. [402] - Prosecution�s Appeal Brief, paras.
4.1 et seq; and para. 4.23. [403] - Defence Response, paras. 51 - 64.
[404] - Celebici Appeal Judgement,
para. 712. [405] - Jelisic Appeal Judgement,
cited in the Prosecution Appeal Brief, paras. 4.25 et seq. [406] - Jelisic Appeal Judgement,
para. 96. [407] - Ibid., emphasis added. [408] - See, e.g. , the Furundzija
Appeal Judgement, para. 250 (�The sentencing provisions in the Statute and the
Rules provide Trial Chambers
with the discretion to take into account the circumstances
of each crime in assessing the sentence to be given. A previous decision
on
sentence may indeed provide guidance if it relates to the same offence and was
committed in substantially similar circumstances;
otherwise, a Trial Chamber
is limited only by the provisions of the Statute and the Rules�) (emphasis added);
see alsoCelebici Appeal Judgement, paras. 719, 721, 757 - 758,
798; Kupreskic et al. Appeal Judgement, para. 443. The ICTR follows the
same practice. Kajelijeli Trial Judgement, para. 963 (�Principal perpetrators
convicted of either genocide or extermination as a crime against humanity
or
both have been punished with sentences ranging from fifteen years to life imprisonment.
Secondary or indirect forms of participation
have generally resulted in a lower
sentence.�); see also the Serushago Sentence, para. 22 (the
accused was convicted of genocide and three counts of crimes against humanity
(murder, extermination,
and torture) and sentenced to 15 years imprisonment
in light of the circumstances of that case). [409] - Celebici Appeal Judgement,
para. 757: �When such a range or pattern has appeared, a Trial Chamber would
be obliged to consider that
range or pattern of sentences, without being bound
by it.� [410] - Kupreskic et al. Appeal Judgement,
para. 444. [411] - Prosecution Appeal Brief, paras.
4.24 - 4.86. [412] - Trial Judgement, para. 696. See
also the following footnotes: 1464, 1465, 1474, 1479, 1484, 1491, 1492, 1497,
1507, 1509, 1511 and 1513. [413] - In the Stakic Trial Judgement,
the accused was sentenced to life imprisonment. [414] - The ICTR has frequently imposed life
sentences on persons convicted of genocide. See, for example, the
Kambanda Trial Judgement (affirmed on appeal); the Akayesu Trial
Judgement (affirmed on appeal); the Kayishema & Ruzindana Trial Judgement,
imposing on Clement Kayishema a life sentence (affirmed on appeal); the Rutaganda
Trial Judgement (appeal pending); the Musema Trial Judgement (affirmed
on appeal); the Kamuhanda Trial Judgement (appeal pending); and the
Niyitegeka Trial Judgement (appeal pending). However, the ICTR has
also issued lesser sentences than life imprisonment for convictions of
genocide.
In the Kayishema & Ruzindana Trial Judgement, Obed Ruzindana was sentenced
to 25 years imprisonment (affirmed on appeal); in the Serushago Trial
Judgement, the Defendant was sentenced to 15 years imprisonment (affirmed on
appeal); and in the Ntakirutimana Trial Judgement and Sentence, the
defendants were sentenced to 10 and 25 years imprisonment (appeal pending).
[415] - Trial Judgement, para. 724. [416] - Prosecution Appeal Brief, para. 4.91.
[417] - Ibid. [418] - The Tribunal has recognised the practice
of �gradation of sentence�; cf. the Aleksovski Appeal Judgement, para.
184. [419] - Trial Judgement, paras. 710 - 712.
[420] - Prosecution�s Appeal Brief, paras.
4.113 et seq. [421] - The Appeals Chamber has, of course,
concluded in any event that general Krstic was not a participant in a genocidal
enterprise,
but only an aider and abettor of genocide. [422] - Defence Response to Prosecution Appeal
Brief, paras. 46 - 50. [423] - Kunarac et al. Trial Judgement,
para. 29. This reasoning has been consistently adopted by the Appeals Chamber.
See Kunarac et al. Appeal Judgement, para. 347 � 349; Tadic Judgement
in Sentencing Appeals, para. 21; Celebici Appeal Judgement, paras. 813
and 820; Kupreskic et al. Appeal Judgement, para. 418. [424] - See also Todorovic Sentencing
Judgement, paras. 96 et seq. (which conducted a similar analysis of the Bosnia-Herzegovinian
law). [425] - Plavsic Sentencing Judgement,
para. 115; Nikolic Sentencing Judgement, para. 96. [426] - Banovic Sentencing Judgement,
para. 89. [427] - Defence Response to Prosecution Appeal
Brief, paras. 66 - 72 and 99. See Trial Judgement at paras. 713 � 717
and 723. The alleged mitigating circumstances were: good personal character;
no previous
record; poor health; and cooperation with the Prosecution. [428] - Trial Judgement, para. 713. [429] - Vasiljevic Appeal Judgement,
para. 181. [430] - Paras. 697 et seq. [431] - Article 24 2 , recognized as �normally
the starting point for consideration of an appropriate sentence� in the Aleksovski
Appeal Judgement, para. 182: �the most important consideration, which may be
regarded as the litmus test for the appropriate
sentence.� See also Celebici
Trial Judgement, para. 1225 (�By far the most important consideration, which
may be regarded as the litmus test for the appropriate
sentence, is the gravity
of the offence.�). [432] - Article 24 1 of the Statute, Rule
101(B)(iii). [433] - Article 24 2 . [434] - Rules 101Bi and ii. [435] - Vasiljevic Appeal Judgement,
paras. 181 � 182, n.291. [436] - Kajelijeli Trial Judgement,
para. 963; Vasiljevic Appeal Judgement, n. 291 (citing the law of seven
common law and civil law jurisdictions). [437] - Prosecution Appeal Brief, para. 3.95.
[438] - See Art. 24 of the Criminal
Code of FRY (�A person, who premedidately aided another person in perpetration
of a criminal act, will
be punished as if he had committed it, his sentence
can also be reduced.�). [439] - Defence Response to Prosecution Appeal
Brief, para. 69. [440] - Ibid., para.72. [441] - See para. 82, supra. [442] - See para. 272, supra.
[443] - See para. 132, supra. [444] - Prosecution Appeal Brief, 5.3. [445] - Tadic Judgement in Sentencing
Appeals, paras. 28, 32.
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