TABLE OF CONTENTS
II. STANDARD OF REVIEW ON APPEAL
III. ERRORS ALLEGED BY NALETILIC AND MARTINOVIC CONCERNING DENIAL OF DUE PROCESS OF LAW
A. Alleged vagueness of the Indictment
1. Introduction
2. Law applicable to indictments
3. Alleged defects in the Indictment
(a) Failure to sufficiently plead
the incident of turning a private property into the headquarters of the Vinko
Skrobo ATG
(b) Failure to sufficiently plead three incidents
of prisoners' beatings in Martinovi c' s area of command
(c) Failure to sufficiently plead incidents of unlawful
transfer of civilians from the DUM area in Mostar on 13-14 June 1993 and from
the Centar II area in Mostar on 29 September 1993
(i) Whether the Indictment suffered from
a material defect in the way the two incidents were pleaded in relation to Martinovic
(ii) Whether the Indictment suffered from
a material defect in the way the two incidents were pleaded in relation to Naletilic
(d) Failure to sufficiently plead incidents
of plunder in Mostar other than those taking place at the DUM area on 13 June
1993
(e) Failure to sufficiently plead incidents
of mistreatment in Ljubuski prison
(f) Conclusion
A. Argument that the evidence
presented to the Trial Chamber was unreliable and/ or unauthenticated
B. Argument that Naletilic and Martinovic cannot
be made responsible for the character of the armed conflict
V. GROUNDS OF APPEAL OF THE PROSECUTION
A. Alleged error relating to persecutions (first ground of appeal)
1. Arguments of the Parties
2. Precise errors alleged
3. Specific findings challenged
4. Conclusion
B. Deportation (third ground of appeal)
VI. GROUNDS OF APPEAL OF NALETILIC
A. Command position (first, third, fourth and sixth grounds of appeal)
(a) Paragraph 103, footnotes 280,
281, 282, 284, 285, 286, 287 and 288 of the Trial Judgement
(b) Paragraph 115, footnote 328 of the Trial Judgement
(c) Paragraph 168, footnote 475 of the Trial
Judgement
(d) Paragraph 428 of the Trial Judgement
(e) Paragraph 431, footnote 1146 of the Trial Judgement
2. Testimony of Witness Falk Simang
(a) Concession of earlier
lies
(b) Speculation allegedly aimed at bolstering the
Prosecution' s case
(c) Alleged lies contained in testimony
(i) Whether Witness Falk
Simang participated in the Sovici action
(ii) Whether the witness spent only one day in Doljani
(iii) Whether another action took place in Doljani
(iv) Whether Naletilic had settled in Doljani
(v) Killings in the forest
(vi) Whether Bofors and other vehicles were
used for transporting belongings of Muslims looted during the second action
in Mostar
(vii) Naletilic and Ivan Andabak each killed
one prisoner of war in front of the Ministry in Mostar on 10 May 1993
(d) Trial Chamber' s alleged selective approach to Witness Falk Simang' s testimony
(i) Aim of the first action
in Doljani
(ii) Units involved in the first action
in Doljani
(e) Challenge to conclusions of the Trial Chamber based upon the testimony of Witness Falk Simang
(i) Footnote 54 of the
Trial Judgement
(ii) Paragraphs 33 and 587, footnotes 72
and 1461 of the Trial Judgement
(iii) Paragraph 44, footnote 113 of the
Trial Judgement
(iv) Paragraph 193, footnote 533 of the
Trial Judgement
(v) Paragraph 125, footnote 358 of the Trial
Judgement
(vi) Paragraphs 629 and 631, footnotes 1554
and 1560 of the Trial Judgement
3. Exhibit PP 928 (Rados Diary)
(a) Alleged hearsay evidence
(b) Conditions required under Rule 92 bis
(c) Opportunity to cross-examine Alojz Rados
B. Search warrant of 18 September 1998 (second ground of appeal)
1. Opportunity to review
and challenge the underlying affidavit
2. Admission of evidence secured by Search
Warrant executed without the assistance of local authoritites in BiH
3. Allegation that the Search Warrant was executed
with excessive use of force
C. Denial of request to subpoena
a Prosecution Trial Attorney as a witness (fifth ground of appeal)
D. Prosecution rebuttal case (eighth ground
of appeal)
1. Arguments of the Parties
2. Procedural background to the rebuttal case
3. Discussion
(a) Witness Safet Idrizovic
(b) Witness Apolonia Bos
(c) Rados Diary
E. Admission of transcripts
from other cases (10th ground of appeal)
F. Attack on Sovici and Doljani as part of a
larger HVO offensive aimed at taking Jablanica (13th ground of appeal)
1. Jablanica as the main
city under Muslim control in the area
2. Exhibit PP 928, the Rados Diary, as
evidence of HVO military operations with regard to taking Jablanica
3. Attack on Sovici and Doljani as part of
a larger offensive aimed at taking Jablanica
4. Naletilic' s role in the Sovici and Doljani
operation
5. Conclusion
G. Well-planned attack by
HVO targeting Mostar' s BH Muslim civilian population ( 14th and 20th grounds
of appeal)
H. Signing of orders (16th ground of appeal)
I. Torture and wilfully causing great suffering
(17th ground of appeal)
(a) Witness TT, Fikret Begic
and Witness B at the Doljani fishfarm
(b) Witness FF at the Heliodrom
2. Findings of wilfully causing great suffering and cruel treatment
(a) Witness AA
(b) Group of prisoners taken from the Vranica building
to the Tobacco Institute in Mostar
J. Mens rea regarding the activities of ATG units in Ljubuski and Mostar (21st ground of appeal)
1. Arguments on Naletilic'
s mens rea
2. Arguments on Naletilic' s failure to prevent
or punish
3. Arguments concerning the direct perpetrators
and Witness FF
4. Conclusion
K. Ernest Takac' s relationship
with Naletilic in May 1993 (22nd ground of appeal )
L. Responsibility for abuses at the MUP station
and the Tobacco station in Siroki Brijeg (23rd ground of appeal)
1. MUP station in Siroki
Brijeg
2. Tobacco station in Siroki Brijeg
3. Conclusion 112
M. Unlawful labour for the use of detainees to dig a trench (24th ground of appeal )
1. No evidence that Naletilic
ordered
2. Authority over and knowledge of the conditions
in which the prisoners worked
3. Evidence of Witness NH
4. Conclusion
N. Unlawful transfer of civilians (19th, 25th and 26th grounds of appeal)
1. Unlawful transfer of civilians in Sovici and Doljani
(a) Chain of command
(b) Exchange of captured civilians
(c) Participation in plan to transfer civilians
(d) Contradictions between exhibits and the
findings of the Trial Chamber
(i) Exhibit PP 333
(ii) Exhibits DD1/426 and PP 362
(iii) Exhibit PP 928
(e) Agreement between the HVO and
the ABiH
(f) Knowledge of the transfer of civilians
(g) The "guarding" of civilians
(h) Arguments based on purported additional evidence
(i) Articles 7(1) and 7(3) of the Statute
(j) Estimation of evidence
2. Unlawful transfer of civilians from Mostar
(a) Trial Chamber' s reliance
on Witness AC' s hearsay testimony
(b) Naletilic' s knowledge of the acts of the Benko
Penavic and the Vinko Skrobo ATG units and effective control over these units
O. Wanton destruction of property
in Doljani (27th ground of appeal)
P. Article 7(3) responsibility for plunder (28th
ground of appeal)
Q. Alleged error relating to persecutions (18th
ground of appeal)
R. Mistreatment of Witnesses Salko Osmic, TT,
B and RR (29th ground of appeal)
S. Mostar "lost files" (30th ground
of appeal)
T. Trial Chamber' s decisions on the admission
of evidence (31st ground of appeal )
U. Evaluation of conflicting evidence (32nd
ground of appeal)
V. Non-combatant status of Witness FF (33rd
ground of appeal) and unlawful detention of Witness O (34th ground of appeal)
W. Rudolf Jozelic (35th ground of appeal)
X. Credibility of Witness Ekrem Lulic (36th
ground of appeal)
Y. Cumulative effect of alleged abuses of discretion
(39th ground of appeal)
VII. SECOND GROUND OF APPEAL OF MARTINOVIC
A. Unlawful labour and human shields
1. Unlawful labour in the area of responsibility of the Vinko Skrobo ATG
(a) Jurisdiction over prisoners
of war at work for the Vinko Skrobo ATG
(b) Treatment of prisoners of war
(c) Nature of the labour performed in the Vinko
Skrobo ATG
(d) Injuries sustained by prisoners of war at work
for the Vinko Skrobo ATG
(e) Martinovic' s individual criminal responsibility
(a) Evaluation of evidence
(b) Logic of using human shields in the attack
(c) Credibility of witnesses
(d) Martinovic' s individual criminal responsibility
(e) Whether the prisoners taken out on 17
September 1993 were returned to the Heliodrom
3. Turning a private property
into the headquarters of Vinko Skrobo ATG
4. Use of detainees in looting private property
5. Conclusion
B. Wilfully causing great
suffering and cruel treatment
C. Murder of Nenad Harmandzic
1. Trial Chamber' s findings
2. Arguments of the Parties
3. Evaluation of the autopsy report and the
evidence of Expert Witnesses Dr. Hamza Zujo and Professor Josip Skavic
4. Evaluation of the evidence of Witness Halil
Ajanic
5. Evaluation of the evidence of Witness AE
6. Evaluation of the evidence of Witness AF
and Witness Y
7. Evaluation of the evidence of Witness AD
8. Evaluation of Exhibits PP 434, PP 520 and PP
774
9. Conclusion
1. 13-14 June 1993
2. 29 September 1993
3. Conclusion
1. Plunder on 13 June 1993
in the DUM area in Mostar
2. Other incidents of plunder
3. Conclusion
1. General errors alleged
2. Alleged errors in the findings on unlawful
confinement and detention as underlying acts of persecutions
3. Alleged errors in the findings on forcible
transfer and deportation as underlying acts of persecutions
4. Alleged errors in the findings on torture,
cruel treatment and wilfully causing great suffering as underlying acts of persecutions
5. Alleged errors in the findings on plunder
as an underlying act of persecutions
6. Conclusion
A. Martinovic' s subground
of appeal: the Trial Chamber erred in law in entering cumulative convictions
against him
B. Prosecution' s fourth ground of appeal:
alleged error in applying cumulative convictions to persecutions and another
Article 5 crime
A. General considerations
B. Martinovic' s appeal against sentence
1. Alleged error regarding
voluntary surrender
2. Alleged error regarding assistance and general
attitude to others
3. Alleged error regarding command role as
an aggravating factor
4. Alleged error regarding unduly severe sentence
5. Implications of the findings of the Appeals
Chamber
C. Naletilic' s appeal against sentence
1. Relationship with other
grounds of appeal
2. Alleged error regarding command role as
an aggravating factor
3. Comparison with other sentences
4. Implications of the findings of the Appeals
Chamber
X. DISPOSITION
XI. DECLARATION OF JUDGE SHAHABUDDEEN
XII. OPINION DISSIDENTE CONJOINTE DES JUGES
GÜNEY ET SCHOMBURG SUR LE CUMUL DE DÉCLARATIONS DE CULPABILITÉ
XIII. SEPARATE AND PARTLY DISSENTING OPINION
OF JUDGE SCHOMBURG
The Obligation of the
Appeals Chamber to Define Deportation in the Instant Case
The "Cross-Border" Transfer
Requirement of Deportation in the Tribunal' s Jurisprudence and in Customary
International Law
The Need for Development of a Suitable "Cross-Border"
Transfer Requirement for Deportation in the Tribunal' s Jurisprudence
The Suitable Definition of Deportation
Within the Framework of Customary International Law and International Principles
of Interpretation
The Mens Rea of Deportation
Conclusion
XIV. ANNEX 1: PROCEDURAL BACKGROUND
A. History of the trial
B. The appeal
1. Notices of appeal
2. Assignment of Judges
3. Counsel
4. Filing of Appeal Briefs
5. Motions pursuant to Rule 115
(a) Naletilic
(b) Martinovic
(c) Prosecution
6. Status Conferences
7. Hearings on appeal
XV. ANNEX 2: GLOSSARY OF TERMS
A. List of International Tribunal and other decisions