TABLE OF CONTENTS

A. Planning, instigating and ordering pursuant to Article 7(1) of the Statute
B. The responsibility under Article 7(1) and Article 7(3) of the Statute
C. War crimes under Article 2 (grave breaches) and Article 3 (violations of the laws and customs of war) of the Statute

1. Wilful killing (Article 2) and murder (Article 3)
2. Inhuman treatment
3. Unlawful attack on civilians and civilian objects
4. Elements of the crimes of unlawful attack against civilians and civilian objects under treaty law

(a) Attack
(b) Prohibited attacks
(c) Is a particular result of the attack required?

(i) Preliminary considerations
(ii) State of customary international law during the Indictment period
(iii) Conclusion

5. Unlawful confinement of civilians
6. Wanton destruction not justified by military necessity
7. Plunder of public or private property
8. Destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science

D. Elements of crimes against humanity

1. The elements common to all crimes against humanity

(a) Requirement that the acts of the accused must take place in the context of a widespread or systematic attack
(b) Requirement that the attack be directed against a civilian population
(c) Is it a requirement that the acts of the accused and the attack itself must have been committed in pursuance to a pre-existing criminal policy or plan?
(d) Requirement that the accused has knowledge that his acts formed part of the broader criminal attack

2. The elements of persecutions as a crime against humanity

(a) Actus reus of persecutions

(i) Attacks on civilians and civilian objects: cities, towns, and villages
(ii) Wilful killing, murder, causing serious injury, and inhuman treatment
(iii) Destruction and plunder/pillage of property

(b) Mens rea of persecutions

3. Murder pursuant to Article 5(a) of the Statute
4. Imprisonment pursuant to Article 5(e) of the Statute
5. Inhumane acts pursuant to Article 5(i) of the Statute

IV. ALLEGED ERRORS RELATING TO DENIAL OF DUE PROCESS OF LAW

A. The arguments of the parties and the matters at issue on appeal

1. Kordic’s First Ground of Appeal: Kordic was denied “equality of arms” and did not receive a fair trial
2. Cerkez’s Third Ground of Appeal: Cerkez was denied a fair trial

B. Alleged vagueness of the Indictment, inadequate notice of the charges, and the Prosecution’s case as a “moving target”

1. Submissions of the parties
2. Discussion

(a) Counts 1 and 2 as umbrella counts
(b) The form of liability expressed in the Indictment
(c) Are material facts pleaded in the Indictment?
(d) Did the exclusion of the material fact cause prejudice?
(e) Conclusion

3. Is the Indictment vague in relation to forcible transfer/expulsion?

(a) Was there lack of adequate notice of charges with respect to both Kordic and Cerkez?

(i) The findings of the Trial Chamber
(ii) Is the Indictment vague in relation to forcible transfer/expulsion as an underlying act of persecutions?
(iii) Is forcible transfer/expulsion a part of imprisonment/unlawful confinement ?
(iv) Is forcible transfer/expulsion a part of inhuman and/or cruel treatment of detainees?
(v) Has the vagueness of the Indictment been cured by the Pre-trial Brief or the opening statement?

(b) Conclusion

C. Equality of arms

1. Submissions of the parties
2. Discussion

D. The Prosecution’s alleged violations of its disclosure obligations under Rule 68

1. Alleged violations at the trial stage: certification
2. Alleged violations at the trial stage: late and new disclosure

(a) Did alleged late and new disclosure prevent Cerkez from testifying?
(b) Did alleged late and new disclosure preclude Cerkez from preparing his final trial brief?

3. Alleged violations at the trial stage: Blaskic’s open-session and closed-session testimony

(a) Alleged violations of Rule 68 post-trial: the ABiH archive

4. The Trial Chamber’s alleged procedural abuses regarding evidence

(a) Was the presentation of Witness AT’s testimony rebuttal evidence?
(b) The presentation of Witness AT’s testimony as fresh evidence
(c) The Trial Chamber’s admission of certain exhibits

(i) Exhibit Z610.1 – the War Diary
(ii) Exhibit Z1380.4
(iii) Exhibits Z692.2 and Z692.3

5. Conclusion

E. The Trial Chamber’s alleged error in relying upon the testimony of Witness AT

1. Overview of the appeal against the testimony of Witness AT

(a) Introduction to the testimony of Witness AT at trial
(b) Submissions presented by Kordic
(c) Submissions presented by Cerkez

2. Alleged undue reliance on Witness AT’s testimony as lacking credibility and as uncorroborated hearsay evidence

(a) Credibility
(b) Witness AT’s alleged uncorroborated hearsay testimony
(c) Alleged errors on circumstantial evidence

3. Conclusion

V. INTERNATIONAL ARMED CONFLICT

A. Alleged errors in determining the law

1. Could the overall control test be considered as a part of international customary law at the time relevant to the Indictment?
2. The geographical scope when determining the international character of an armed conflict
3. The determination of the status of “protected persons”

B. Alleged errors in applying the law

1. Did an armed conflict exist in Central Bosnia before April 1993?
2. Was the armed conflict in Central Bosnia international?
3. Was Article 4(2) of the Geneva Convention IV applicable?

C. Conclusion

VI. THE CRIMES

A. Introduction
B. Attacks on towns and villages and related crimes

1. Novi Travnik – October 1992
2. Town of Busovaca– January 1993

(a) Unlawful attack on civilians, Count 3 (Kordic)

(i) Status and number of victims
(ii) Discriminatory context within which the attack occurred
(iii) Conclusion

(b) Unlawful attack on civilian objects, Count 4 (Kordic)
(c) Murder, Count 7 (Kordic) and wilful killing, Count 8 (Kordic)
(d) Inhumane acts, Count 10 (Kordic) and inhuman treatment, Count 12 (Kordic)
(e) Wanton destruction not justified by military necessity, Count 38 (Kordic) and plunder of public or private property, Count 39 (Kordic)

3. Merdani – January 1993
4. Vitez and Stari Vitez – April 1993

(a) Unlawful attack on civilians, Count 3 (Kordic) and Count 5 (Cerkez)

(i) Means used by the HVO for the attack, and crimes committed during its course
(ii) Strategic interest of Stari Vitez
(iii) Status and number of victims
(iv) The discriminatory context within which the attack occurred
(v) Conclusion

(b) Unlawful attack on civilian objects, Count 4 (Kordic) and Count 6 (Cerkez)
(c) Murder, Counts 7 (Kordic) and 14 (Cerkez) and wilful killing, Counts 8 (Kordic ) and 15 (Cerkez)
(d) Inhumane acts, Count 10 (Kordic) and Count 17 (Cerkez) and inhuman treatment , Count 12 (Kordic) and Count 19 (Cerkez)
(e) Wanton destruction not justified by military necessity, Count 38 (Kordic) and Count 41 (Cerkez)
(f) Plunder of public or private property, Count 39 (Kordic) and Count 42 (Cerkez )
(g) Wilful damage to institutions dedicated to religion or education, Count 43 ( Kordic) and Count 44 (Cerkez)

5. Ahmici – April 1993
6. Santici, Nadioci and Pirici

(a) Santici

(i) Unlawful attack on civilians, Count 3 (Kordic)
(ii) Unlawful attack on civilian objects, Count 4 (Kordic))
(iii) Murder, Count 7 (Kordic) and wilful killing, Count 8 (Kordic)
(iv) Inhumane acts, Count 10 (Kordic) and inhuman treatment, Count 12 (Kordic)
(v) Wanton destruction not justified by military necessity, Count 38 (Kordic)

(b) Nadioci

(i) Unlawful attack on civilians, Count 3 (Kordic)
(ii) Unlawful attack on civilian objects, Count 4 (Kordic)
(iii) Murder, Count 7 (Kordic) and wilful killings, Count 8 (Kordic)
(iv) Inhumane acts, Count 10 (Kordic) and inhuman treatment, Count 12 (Kordic)
(v) Wanton destruction not justified by military necessity, Count 38 (Kordic)

(i) Unlawful attack on civilians, Count 3 (Kordic)
(ii) Unlawful attack on civilian objects, Count 4 (Kordic)
(iii) Murder, Count 7 (Kordic) and wilful killing, Count 8 (Kordic)
(iv) Inhumane acts, Count 10 (Kordic) and inhuman treatment, Count 12 (Kordic)
(v) Wanton destruction not justified by military necessity, Count 38 (Kordic)

7. Gacice – April 1993

(a) Wanton destruction not justified by military necessity, Count 38 (Kordic)

8. Veceriska and Donja Veceriska – April 1993

(a) Unlawful attack on civilians, Count 3 (Kordic) and Count 5 (Cerkez) and unlawful attack on civilian objects, Count 4 (Kordic) and Count 6 (Cerkez)

(i) Unlawful attack on civilians, Count 3 (Kordic) and Count 5 (Cerkez)

a. Strategic interest of Veceriska/Donja Veceriska
b. Means used by the HVO for the attack and crimes committed during its course
c. Status and number of victims
d. Conclusion

(ii) Unlawful attack on civilian objects, Count 4 (Kordic) and Count 6 (Cerkez)

(b) Murder, Count 7 (Kordic), Count 14 (Cerkez) and wilful killing, Count 8 (Kordic ), Count 15 (Cerkez)
(c) Inhumane acts, Count 10 (Kordic) and Count 17 (Cerkez) and inhuman treatment, Count 12 (Kordic) and Count 19 (Cerkez),
(d) Wanton destruction not justified by military necessity, Counts 38 (Kordic) and 41 (Cerkez)
(e) Plunder of public or private property, Count 39 (Kordic) and Count 42 (Cerkez )

9. Loncari

(a) Plunder of public or private property, Count 39 (Kordic)

10. Ocehnici – April 1993

(a) The Trial Chamber’s finding
(b) Wanton destruction not justified by military necessity (Count 38)

11. Kiseljak municipality

(a) Rotilj in April 1993

(i) Unlawful attack on civilians, Count 3 (Kordic)
(ii) Unlawful attack on civilian objects, Count 4 (Kordic)
(iii) Murder, Count 7 (Kordic) and wilful killing, Count 8 (Kordic)
(iv) Inhumane acts, Count 10 (Kordic) and inhuman treatment, Counts 12 (Kordic)
(v) Wanton destruction not justified by military necessity, Count 38 (Kordic)
(vi) Plunder of public or private property, Count 39 (Kordic)

(b) Town of Kiseljak in April 1993

(i) Wanton destruction not justified by military necessity, Count 38 (Kordic)
(ii) Plunder of public or private property, Count 39 (Kordic)

(d) Gomionica in April 1993

(i) Wanton destruction not justified by military necessity, Count 38 (Kordic)
(ii) Plunder of public or private property, Count 39 (Kordic)

(e) Visnjica in April 1993

(i) Wanton destruction not justified by military necessity, Count 38 (Kordic)

(f) Polje Visnjica in April 1993

(i) Wanton destruction not justified by military necessity, Count 38 (Kordic)

(g) Behrici in April 1993

(i) Wanton destruction not justified by military necessity, Count 38 (Kordic)

(h) Gromiljak in April 1993

(i) Wanton destruction not justified by military necessity, Count 38 (Kordic)

(i) Tulica and Han Ploca-Grahovci in June 1993

(i) Tulica

a. Murder, Count 7 (Kordic) and wilful killing, Count 8 (Kordic)
b. Inhumane acts, Count 10 (Kordic) and inhuman treatment, Count 12 (Kordic)
c. Wanton destruction not justified by military necessity, Count 38 (Kordic)
d. Plunder of public or private property, Count 39 (Kordic)

(ii) Han Ploca-Grahovci

a. Murder, Count 7 (Kordic) and wilful killing, Count 8 (Kordic)
b. Inhumane acts, Count 10 (Kordic) and inhuman treatment, Count 12 (Kordic)
c. Wanton destruction not justified by military necessity (Count 38)
d. Plunder of public or private property, Count 39 (Kordic)
e. Destruction or wilful damage to institutions dedicated to religion or education (Han Ploca)

C. Detention related crimes

1. Introduction

2. Centres of Detention – Imprisonment, Count 21 (Kordic), Count 29 (Cerkez) and unlawful confinement of civilians , Count 22 (Kordic), Count 30 (Cerkez)

(a) The Dubravica Elementary School
(b) The Chess Club
(c) The Veterinary Station
(d) The SDK building
(e) The Vitez Cinema (Cultural Centre)
(f) The Kaonik detention centre
(g) The Kiseljak barracks and the Kiseljak municipal building
(h) Rotilj village

D. Persecutions, a crime against humanity

1. Kordic’s Third Ground of Appeal: The Trial Chamber erred in finding that the Muslim-Croat conflict in Central Bosnia was a unilateral Bosnian-Croat campaign of persecutions

(a) Discussion

(i) The elements of persecutions, a crime against humanity

a. Widespread or systematic attack directed against any civilian population
b. Crimes committed in armed conflict
c. Equal gravity
d. Mens rea of persecutions
e. Conclusion

(ii) The campaign of persecution
(iii) The role of Kordic in the campaign of persecution

(b) Conclusion

VII. INDIVIDUAL CRIMINAL RESPONSIBILITY

A. Prosecution’s Second Ground of Appeal: The Trial Chamber erred in its application of Article 7(1) of the Statute in relation to Cerkez

1. Findings of the Trial Chamber
2. Arguments of the Parties
3. Relief sought
4. Discussion

(a) The alleged criminal responsibility of Cerkez for crimes committed in the initial attack in Ahmici
(b) Cerkez’s alleged participation in a campaign to persecute
(c) Cerkez’s alleged co-perpetratorship of the crimes committed in the initial attack in Ahmici

(i) Actus reus

a. Did Cerkez participate in the military planning of the attack on Ahmici?
b. Was significant assistance provided to the Military Police units involved in the attack on Ahmici?
c. Were physical acts of persecutions performed by arresting Muslims in Ahmici and other acts?

(ii) Conclusion as to the alleged actus reus of Cerkez as co-perpetrator of crimes committed during the initial attack in Ahmici

(d) Cerkez’s alleged criminal responsibility as a planner or aider and abettor
(e) The alleged criminal responsibility of Cerkez for crimes committed after the initial attack in Ahmici

(i) Cerkez’s alleged participation in a campaign to persecute

5. Conclusion

B. Prosecution’s Third Ground of Appeal: Misapprehension of Relevant Evidence Indicating the Presence of Viteska Brigade members during the Attack in Ahmici

1. Findings of the Trial Chamber
2. Arguments of the Parties
3. Discussion

(a) Nenad Santic
(b) Ivica Semren and Drazenko (Ivica) Vidovic
(c) Ivica Delic
(d) Did Cerkez provide significant assistance to the Military Police units involved in the attack on Ahmici?
(e) Documentary evidence

4. Conclusion

C. Cerkez’s responsibility

1. Alleged errors relating to the criminal plan

(a) Cerkez’s appeal relating to his mens rea and knowledge of the HVO criminal plan

2. Alleged errors of law

(a) The scope of command responsibility
(b) Causative relationship
(c) Standard to apply to circumstantial evidence
(d) Self-Defence

3. Alleged errors of fact

(a) Introduction
(b) Alleged error concerning units in relation to which Cerkez had a superior relationship
(c) Alleged errors relating to the areas of deployment of the Viteska Brigade
(d) Alleged errors relating to Cerkez’s alleged participation in the second meeting on 16 April 1993 and what was decided at that meeting
(e) Alleged errors relating to Cerkez’s knowledge of the crimes

4. Responsibility

(a) Attacks on towns and villages

(i) Veceriska/Donja Veceriska
(ii) Vitez/Stari Vitez

(b) Detention related crimes – Counts 29, 30, 31, 33 and 35

(i) Introduction
(ii) The Chess Club (Counts 29, 30 and 31)
(iii) The Vitez Cinema

a. Imprisonment and unlawful confinement (Counts 29 and 30)
b. Inhuman treatment, Count 31 (Cerkez)

(iv) The Veterinary Station

a. Imprisonment, Count 29 and unlawful confinement, Count 30
b. Inhuman treatment, Count 31

(v) The SDK building

a. Imprisonment, Count 29 and unlawful confinement, Count 30
b. Inhuman treatment, Count 31

(vi) Taking civilians as hostages, Count 33
(vii) Inhuman treatment (human shields), Count 35

(i) Alleged error in finding that there was a widespread or systematic attack
(ii) Alleged error in finding that Cerkez acted with discriminatory intent
(iii) Conclusion

D. Kordic’s Responsibility

1. Introduction
2. Novi Travnik
3. Busovaca
4. Lasva Valley, April 1993
5. Kiseljak municipality

(a) April 1993
(b) June 1993

6. Findings in relation to the different places

(a) Merdani
(b) Loncari
(c) Ocehnici
(d) Veceriska/Donja Veceriska
(e) Gacice
(f) Vitez/Stari Vitez
(g) Ahmici
(h) Santici
(i) Pirici, Nadioci
(j) Rotilj
(k) Town of Kiseljak
(l) Svinjarevo, Gomionica, Visnjica, Polje Visnjica, Behrici, Gromiljak
(m) Tulica
(n) Han Ploca-Grahovci

7. Detention crimes

(a) Alleged error in finding that Kordic was associated with orders for the detention of Bosnian Muslims and “the ordering and coming into existence of the detention facilities” in the Lasva Valley
(b) Alleged error relating to Kordic’s mens rea for the detention crimes
(c) The Chess Club and the Veterinary Station in Vitez
(d) The SDK building, the Vitez Cinema, and the Dubravica Elementary School
(e) The Kaonik detention centre
(f) Rotilj village, the Kiseljak municipal building and the Kiseljak barracks

VIII. FACTUAL FINDINGS WITHOUT CHARGES

IX. CUMULATIVE CONVICTIONS

A. The settled jurisprudence on cumulative convictions

1. The law applicable to cumulative convictions under Articles 2, 3 and 5
2. The law applicable to intra-Article 5 convictions

B. Cumulative convictions in this case

X. ALLEGED ERRORS IN SENTENCING

A. Kordic

1. Kordic’s sixth ground of appeal

(a) Submissions of the Parties
(b) Discussion

(i) The convictions against Kordic
(ii) The Trial Chamber’s alleged error in exercising its sentencing discretion

2. Prosecution’s fourth ground of appeal

(a) Submissions of the Parties
(b) Alleged error in imposing a manifestly inadequate sentence
(c) Conclusion

3. The adequate sentence for Kordic

B. Cerkez

1. Cerkez’s and the Prosecution’s fifth ground of appeal
2. The adequate sentence for Cerkez

(a) The applicable purposes of sentencing

(i) Retribution
(ii) Deterrence
(iii) Rehabilitation
(iv) Individual and general affirmative prevention

(b) Article 24 of the Statute and Rule 101 of the Rules
(c) The general practice regarding prison sentences in the courts of the former Yugoslavia
(d) Specific considerations of the Appeals Chamber on the sentences

3. Conclusion

XI. DISPOSITION

XII. SEPARATE OPINION OF JUDGE WEINBERG DE ROCA

XIII. JOINT DISSENTING OPINION OF JUDGE SCHOMBURG AND JUDGE GÜNEY ON CUMULATIVE CONVICTIONS

XIV. ANNEX A: PROCEDURAL BACKGROUND

A. History of the Trial
B. The Appeal

1. Notices of Appeal
2. Assignment of Judges
3. Counsel
4. Decision on re-trial
5. Filing of the Appeal Briefs
6. Disclosure of exculpatory material during the appeals stage
7. Motions pursuant to Rule 115 of the Rules
8. Access to material filed in Prosecutor v. Blaskic
9. Provisional release
10. Filings related to Cerkez’s financial status
11. Release of Mario Cerkez
12. Status conferences
13. Appeals Hearing

XV. ANNEX B: GLOSSARY OF TERMS

A. List of International Tribunal and Other Decisions

1. International Tribunal
2. ICTR
3. Decisions Related to Crimes Committed During World War II
4. Other Decisions

(a) ICJ
(b) Domestic cases

B. List of Other Legal Authorities

1. Books, Edited Volumes and Collections
2. Dictionaries
3. Other Legal Authority

C. List of Abbreviations