1 Trial Judgement, paras 1, 18. The Trial Chamber referred to “BH Croats” and “BH Muslims”, instead of to “Bosnian Croats ” and “Bosnian Muslims”, which are the terms most commonly used in the jurisprudence of the International Tribunal. For the purposes of this Judgement, the Appeals Chamber will also employ the terms “BH Croats” and “BH Muslims” to describe the members of these groups.
2 Trial Judgement, paras 1, 18, 25, 38-39.
3 Trial Judgement, paras 1, 25.
4 Trial Judgement, paras 55, 56.
5 Trial Judgement, para. 2.
6 Trial Judgement, paras 2, 86.
7 Trial Judgement, para. 87.
8 Trial Judgement, para. 87.
9 Trial Judgement, para. 94.
10 Trial Judgement, para. 763.
11 Trial Judgement, paras 720-728, 764.
12 Statute of the International Tribunal for the Former Yugoslavia established by Security Council Resolution 827 (1993).
13 Trial Judgement, paras 589, 596 -597, 763.
14 Trial Judgement, paras 325-326, 333, 763.
15 Trial Judgement, paras 631, 763 .
16 Trial Judgement, paras 646-648, 671-672, 679, 681-682, 701, 705-706, 710-715, 763.
17 Trial Judgement, paras 366-369, 411, 447, 449, 451, 453-454, 763.
18 Trial Judgement, paras 366-369, 411, 447, 449, 451, 453-454, 763.
19 Trial Judgement, paras 379, 394, 403-404, 412, 427-428, 435-436, 438, 450, 451, 453-454, 763.
20 Trial Judgement, paras 527, 531 -532, 556-558, 566, 570-571, 763.
21 The Appeals Chamber takes note of the discrepancy between paragraphs 411 and 453 of the Trial Judgement. Paragraph 453 appears under the heading “Summary of findings” and states that Naletilic bears responsibility for torture pursuant to Article 7(1) and for cruel treatment and willfully causing great suffering pursuant to Article 7(1) and 7(3). Paragraph 411, however, unequivocally states that: “?tghe Chamber thus finds that Mladen Naletilic bears command responsibility for the torture of witnesses BB and CC under Articles 5(f) and 2(b) of the Statute (Counts 9 and 10)” (emphasis added). The Appeals Chamber also notes the discrepancy between paragraphs 648 (where the Trial Chamber finds that Naletilic’s responsibility for the unlawful confinement of civilians is most appropriately described by Article 7(1) of the Statute) and 710 (where the Trial Chamber finds that Naletilic bears responsibility under Article 7(3) of the Statute for the unlawful confinement of civilians as an act of persecutions).
22 Trial Judgement, para. 765.
23 Trial Judgement, para. 3.
24 Trial Judgement, para. 3.
25 Trial Judgement, para. 102.
26 Trial Judgement, paras 98, 100- 102.
27 Trial Judgement, para. 767.
28 Trial Judgement, paras 729-738, 768.
29 Trial Judgement, paras 650-652, 672, 676, 683, 702, 710-713, 715, 767.
30 Trial Judgement, paras 271-272, 289-290, 334, 767.
31 Trial Judgement, paras 271-272, 289-290, 334, 767.
32 Trial Judgement, paras 389, 439, 455-456, 767.
33 Trial Judgement, paras 508, 511, 767.
34 Trial Judgement, paras 508, 511 767.
35 Trial Judgement, paras 551-554, 563-564, 569, 767.
36 Trial Judgement, paras 271-272, 289-290, 310-313, 334, 767.
37 Trial Judgement, paras 627-628, 767.
38 Trial Judgement, para. 769.
39 Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a. “Stela”, Case No. IT-98-34-A, Notice of Appeal of Mladen Naletilic a.k.a. Tuta, 29 April 2003 (“Naletilic Notice of Appeal”); Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a. “Stela”, Case No. IT-98-34-A, Notice of Appeal Against Judgement No . IT-98-34-T of 31 March 2003 in the case: Prosecutor vs. Vinko Martinovic, 29 April 2003 (“Martinovic Notice of Appeal”); Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a. “Stela”, Case No. IT-98-34-A, Prosecution’s Notice of Appeal, 2 May 2003 (“Prosecution Notice of Appeal”). The Procedural Background to the appellate proceedings can be found in Annex 1.
40 Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a. “Stela”, Case No. IT-98-34-A, Appeal Brief of Mr. Vinko Martinovic (Public –Redacted Version), 24 May 2005 (“Martinovic Appeal Brief”), para. 2; Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a. “Stela”, Case No. IT-98-34-A, Mladen Naletilic’s Revised Appeal Brief Redacted, 10 October 2005 (“Naletilic Revised Appeal Brief”), p. 1.
41 The Prosecution originally alleged four grounds of appeal: Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a. “Stela”, Case No. IT-98-34-A, Appeal Brief of the Prosecution, 14 July 2003 (“Prosecution Appeal Brief”), paras 2.1-2.3, 3.1, 4.1, 5.1-5.3. On 30 September 2005, the Prosecution notified the Appeals Chamber that it withdrew its second ground of appeal on unlawful labour, contained in paras 3.1-3.27 of the Prosecution Appeal Brief: Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a. “Stela”, Case No. IT-98-34-A, Prosecution’s Notice of Withdrawal of its Second Ground of Appeal, 30 September 2005 (“Prosecution Notice of Withdrawal”), para. 1.
42 Article 25(1) of the Statute states : “?tghe Appeals Chamber shall hear appeals from persons convicted by the Trial Chamber or from the Prosecutor on the following grounds: (a) an error on a question of law invalidating the decision; or (b) an error of fact which has occasioned a miscarriage of justice.”
43 Vasiljevic Appeal Judgement, para. 6.
44 Blaskic Appeal Judgement, para. 15; Kordic and Cerkez Appeal Judgement, para. 17.
45 See Kupreskic et al. Appeal Judgement, paras 30-32.
46 Blaskic Appeal Judgement, para. 17.
47 Blaskic Appeal Judgement, para. 16; Kordic and Cerkez Appeal Judgement, para. 18.
48 Rules of Procedure and Evidence, IT/32/Rev. 37, 6 April 2006.
49 Kupreskic et al. Appeal Judgement, para. 75.
49bis Blaskic Appeal Judgement, para. 22.
50 Blaskic Appeal Judgement, para. 13; Kordic and Cerkez Appeal Judgement, para. 21.
51 Practice Direction on Formal Requirements for Appeals from Judgement, IT/201, 7 March 2002, para. 4(b).
52 Blaskic Appeal Judgement, para. 13; Kordic and Cerkez Appeal Judgement, paras 22-23.
53 Martinovic Appeal Brief, para. 143.
54 Martinovic Appeal Brief, para. 184.
55 Martinovic Appeal Brief, paras 417, 498.
56 Martinovic Appeal Brief, paras 431, 434, 453.
57 Naletilic Notice of Appeal, p. 5; Naletilic Revised Appeal Brief, para. 143.
58 Naletilic Revised Appeal Brief, para. 176. Naletilic “incorporates his arguments in his 21st ground of appeal” in his 35th ground of appeal: Naletilic Revised Appeal Brief, para. 270.
59 Naletilic raises the issue of notice in relation to his 21st and 35th grounds of appeal only in his Appeal Brief: Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a. “Stela ”, Case No. IT-98-34-A, Mladen Naletilic’s Brief on Appeal, 15 September 2003 (Confidential – Under Seal) (“Naletilic Appeal Brief”), paras 176, 270; Naletilic Revised Appeal Brief, paras 176, 270.
60 See Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a. “Stela”, Case No. IT-98-34-A, Public Redacted Version of “Prosecution’s Respondent’s Brief to Mladen Naletilic ’s Appeal Brief” Filed on 30 October 2003, 21 March 2005 (“Prosecution Response to Naletilic Revised Appeal Brief”), para. 2.41; Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a. “Stela”, Case No. IT-98-34-A, Public Redacted Version of Prosecution’s Respondent’s Brief to Vinko Martinovic’s Appeal Brief, 21 March 2005 (“Prosecution Response to Martinovic Appeal Brief”), paras 3.35, 4.4, 7.8-7.13, 8.27-8.31; Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a. “Stela”, Case No. IT-98-34-A, Prosecution’s Respondent’s Brief to Vinko Martinovic’s Appeal Brief, 8 October 2003 (Confidential ) (“Confidential Prosecution Response to Martinovic Appeal Brief”), paras 7.10-7 .12, 8.30-8.31.
61 Cf. Momir Nikolic v. Prosecutor, Case No. IT-02-60/1-A, Decision on Appellant’s Motion to Amend Notice of Appeal, 21 October 2004 (“M. Nikolic Decision on Motion to Amend”), pp. 2-3; Prosecutor v. Blagoje Simic, Case No. IT-95-9-A, Decision on Motion of Blagoje Simic to Amend Notice of Appeal, 16 September 2004 (“B. Simic Decision on Motion to Amend”), pp. 4-5.
62 Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a “Stela”, Case No. IT-98-34-1, Indictment, 18 December 1998 (“Initial Indictment”); Prosecutor v. Vinko Martinovic, a.k.a. “Stela”, Case No. IT-98-34-PT, Objection to the Indictment, 4 October 1999 (Confidential) (“Martinovic Objection to the Initial Indictment”); Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic a.k.a. “Stela”, Case No. IT-98-34-PT, Defence’s Preliminary Motion, 20 April 2000 (“Naletilic Objection to the Initial Indictment”).
63 Martinovic Objection to the Initial Indictment (Confidential), AD-XV.
64 Martinovic Objection to the Initial Indictment (Confidential), AD-XVI and XVII read: “the arguments stated under counts V, VI, VII, VIII, X, XI and XII are still valid”. Sections AD-V, VI and VII argue that the Initial Indictment was too vague.
65 Martinovic Objection to the Initial Indictment (Confidential), AD-XXI and XXII.
66 Martinovic Objection to the Initial Indictment (Confidential), AD-XXI and XXII.
67 Naletilic Objection to the Initial Indictment, paras III-12 and IV-2,3. See also Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a. “Stela”, Case No. IT-98-34-PT, Decision on Preliminary Motion of Mladen Naletilic, 11 May 2000, p. 3.
68 Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a. “Stela”, Case No. IT-98-34-PT, Decision on Defendant Vinko Martinovic’s Objection to the Indictment, 15 February 2000.
69 Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a. “Stela”, Case No. IT-98-34-PT, Decision on Preliminary Motion of Mladen Naletilic, 11 May 2000.
70 15 February 2000 Decision, para . 23. The 11 May 2000 Decision refers to the explanation in the 15 February 2000 Decision.
71 15 February 2000 Decision, paras 19, 27, 30.
72 15 February 2000 Decision, para . 27.
73 Prosecution Response to Martinovic Appeal Brief, para. 7.13.
74 Prosecution Response to Martinovic Appeal Brief, paras 8.30-8.31; Confidential Prosecution Response to Martinovic Appeal Brief, paras 8.30-8.31.
75 Blaskic Appeal Judgement, para. 222; Furundžija Appeal Judgement, para. 174.
76 The waiver doctrine should not entirely foreclose an accused from raising an indictment defect for the first time on appeal. An accused who fails to object to a defect indictment at trial has the burden of proving on appeal that his ability to prepare his case was materially impaired by the indictment defect. Niyitegeka Appeal Judgement, para. 200 .
77 Blaskic Appeal Judgement, para. 222; Akayesu Appeal Judgement, para. 361.
78 See supra, paras 15, 18.
79 Count 5 (unlawful labour) of the Initial Indictment was subsequently amended to also include a charge of unlawful labour under Article 52 of Geneva Convention III: Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a. “Stela”, Case No. IT-98-PT, Decision on Prosecution Motion to Amend Count 5 of the Indictment, 28 November 2000 (“Decision to Amend Count 5”). However, no new factual allegations or additional witnesses were added through this amendment: Decision to Amend Count 5, p. 2; Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a. “Stela”, Case No. IT-98-34-PT, Amended Indictment, 4 December 2000 (“Amended Indictment”). Naletilic’s and Martinovic’s objections to the Amended Indictment, which the Trial Chamber subsequently rejected, did not contain the allegation that it was vague: Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a. “Stela”, Case No. IT-98-34-PT, Decision on Vinko Martinovic’s Objection to the Amended Indictment and Mladen Naletilic’s Preliminary Motion to the Amended Indictment, 14 February 2001, p. 2, points 1-3. Finally, Counts 9, 10 and 19 to 22 of the Amended Indictment were amended to “clarify that the accused Martinovic is not charged in Counts 9, 10, 19, 20 and 22”, to which amendment he did not object: Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a. “Stela”, Case No. IT- 98-34-T, Decision on Prosecutor’s Motion to Amend the Amended Indictment, 16 October 2001, p. 2; Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a. “Stela”, Case No. IT-98-34-PT, Second Amended Indictment, 28 September 2001 (“Indictment”).
80 Naletilic Objection to the Initial Indictment, paras III-12 and IV-2,3 state that “the description of the acts alleged under Count 1 to 22 of the CHARGES (…( are not indicated in such a way as to be clear indication of the time of the crime perpetration, the manner, location, consequences, and the form of guilt”. See also 11 May 2000 Decision, p. 3.
81 The Trial Chamber held that it “already rejected (Martinovic’s( objections that the same portions of the indictment do not provide sufficient details in (the 15 February 2000 Decision(” and that “ the explanations given in that Decision for rejecting Mr. Martinovic’s objections are equally applicable here”: 11 May 2000 Decision, p. 3
82 Trial Judgement, Annex II, para . 7.
83 Kvocka et al. Appeal Judgement, para. 35; Niyitegeka Appeal Judgement, para. 200; Ntakirutimana Appeal Judgement, para. 58.
84 Kvocka et al. Appeal Judgement, para. 27; Kupreskic et al. Appeal Judgement, para. 88.
85 See Kupreskic et al. Appeal Judgement, para. 88.
86 Blaskic Appeal Judgement, para. 213; Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-PT, Decision on Preliminary Motion on Form of Amended Indictment, 11 February 2000 (“Krnojelac 11 February 2000 Decision”), para. 18; Kupreskic et al. Appeal Judgement, para. 89.
87 Kupreskic et al. Appeal Judgement, para. 89. The Appeals Chamber in Ntakirutimana pointed out that “the inability to identify victims is reconcilable with the right of the accused to know the material facts of the charges against him because, in such circumstances, the accused’s ability to prepare an effective defence to the charges does not depend on knowing the identity of every single alleged victim. The Appeals Chamber recalls that the situation is different, however, when the Prosecution seeks to prove that the accused personally killed or harmed a particular individual. (…( (T(he Prosecution cannot simultaneously argue that the accused killed a named individual yet claim that the ‘sheer scale’ of the crime made it impossible to identify that individual in the indictment. Quite the contrary: the Prosecution’s obligation to provide particulars in the indictment is at its highest when it seeks to prove that the accused killed or harmed a specific individual”: Ntakirutimana Appeal Judgement, paras 73-74.
88 Blaskic Appeal Judgement, para. 213. See also Prosecutor v. Milorad Krnojelac, Case No. IT -97-25-PT, Decision on the Defence Preliminary Motion on the Form of the Indictment, 24 February 1999, para. 13; Krnojelac 11 February 2000 Decision, para. 18; Prosecutor v. Radoslav Br|anin and Momir Talic, Case No. IT-99-36-PT, Decision on Objections by Momir Talic to the Form of the Amended Indictment, 20 February 2001, para. 20.
89 Kvocka et al. Appeal Judgement, para. 30; see also Kupreskic et al. Appeal Judgement, para. 92.
90 Kvocka et al. Appeal Judgement, para. 31; Kupreskic et al. Appeal Judgement, para. 92.
91 Kvocka et al. Appeal Judgement, para. 33.
92 Kvocka et al. Appeal Judgement, para. 33.
93 See Kupreskic et al. Appeal Judgement, para. 114; Kvocka et al. Appeal Judgement, para. 33.
94 Kvocka et al. Appeal Judgement, para. 33.
95 Article 25(1)(a) of the Statute ; Kvocka et al. Appeal Judgement, para. 34.
96 See Kordic and Cerkez Appeal Judgement, para. 142; Rutaganda Appeal Judgement, para. 303.
97 See e.g. Kupreskic et al. Appeal Judgement, para. 117.
98 Kordic and Cerkez Appeal Judgement, para. 169.
99 See e.g. Rule 65 ter (E) (ii).
100 Ntakirutimana Appeal Judgement, para. 27 (citing Prosecution v. Radoslav Brdanin and Momir Talic, Case No. IT-99-36-PT, Decision on Form of Further Amended Indictment and Prosecution Application to Amend, 26 June 2001, para. 62).
101 Kvocka et al. Appeal Judgement, paras 52, 53; Kordic and Cerkez Appeal Judgement, para. 148.
102 See Kupreskic et al. Appeal Judgement, para. 79. Naletilic and Martinovic do not claim on appeal that the Indictment was vague in relation to the form of responsibility alleged. With respect to those charges for which the Trial Chamber found that Naletilic’s and Martinovic’s responsibility was established pursuant to both Article 7(1) and 7(3) of the Statute, and for which it found that Article 7(1) more appropriately described their responsibility, only the pleadings in the Indictment relating to Article 7(1) have been examined.
103 Trial Judgement, paras 311, 313, 334.
104 Martinovic Appeal Brief, para . 143.
105 Confidential Prosecution Response to Martinovic Appeal Brief, para. 3.35 (citing Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a. “Stela”, Case No. IT-98-34-PT, Prosecutor’s Chart of Witnesses and List of Facts Submitted Pursuant to the Trial Chamber’s Scheduling Order of 16 June 2000, 18 July 2000 (Under Seal) (“Prosecution Chart of Witnesses and List of Facts”).
106 See Trial Judgement, paras 255-257 (observing, correctly, that such forced labour violates Article 50 of Geneva Convention III).
107 See Indictment, paras 35, 39, 40.
108 Indictment, para. 44.
109 The Appeals Chamber considers that the reference to “Bosnian Muslim detainees” was, however, sufficient to give Martinovic notice as to the identity of the victims.
110 Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a. “Stela”, Case No. IT-98-34-PT, Prosecutor’s Pre-Trial Brief, 11 October 2000 (“Prosecution Pre-Trial Brief”), para. 3.8.
111 Prosecution Chart of Witnesses and List of Facts (Under Seal), Annex 2, paras 176-177. See also Prosecution Chart of Witnesses and List of Facts (Under Seal), Annex 1, p. 46, where a summary of Witness SS (upon whose testimony the Trial Chamber based its finding regarding this incident) is provided and which does not contain the material facts absent from the Indictment with regard to the incident of turning a private property into the headquarters of the Vinko Skrobo ATG.
112 Trial Judgement, paras 385, 386, 388, 389. As a result of cumulative convictions coming into play, only a conviction for wilfully causing great suffering under Count 12 was entered: Trial Judgement, paras 734, 767, 768.
113 Martinovic Appeal Brief, paras 184, 186.
114 Martinovic Appeal Brief, para . 185.
115 Prosecution Response to Martinovic Appeal Brief, para. 4.4.
116 Prosecution Response to Martinovic Appeal Brief, para. 4.4.
117 Prosecution Response to Martinovic Appeal Brief, para. 4.4.
118 The criminal acts for which Martinovic is alleged to be responsible under Counts 11 and 12 are stated in paragraphs 45, 49 and 50 of the Indictment. Paragraph 50 is relevant to Martinovic’s alleged responsibility pursuant to Article 7(3), for which he was not convicted: Trial Judgement, para. 455. The Trial Chamber relied on the allegations in paragraph 49 of the Indictment when reaching its findings for the three incidents: Trial Judgement, paras 382, 452.
119 “(T(he area under (Martinovic ’s( command”: Indictment, para. 49.
120 The Prosecution was not, however, required to identify possible eyewitnesses in the Indictment, contrary to Martinovic’s suggestion.
121 The Prosecution does not claim that its Pre-Trial Brief provided additional information on any of the three incidents .
122 Trial Judgement, para. 385.
123 Prosecution Chart of Witnesses and List of Facts (Under Seal), pp. 46-47, 56.
124 Trial Judgement, para. 385.
125 Prosecution Chart of Witnesses and List of Facts (Under Seal), pp. 46, 47, 56.
126 Prosecution Chart of Witnesses and List of Facts (Under Seal), p. 56.
127 T. 1849-1853.
128 Trial Judgement, para. 386, fn . 1010.
129 Prosecution Chart of Witnesses and List of Facts (Under Seal), p. 45.
130 Prosecution Chart of Witnesses and List of Facts (Under Seal), pp. 22-23.
131 T. 1851.
132 Trial Judgement, para. 388.
133 Prosecution Chart of Witnesses and List of Facts (Under Seal), p. 41.
134 T. 1804-1860. Examples of alleged beatings administered by Martinovic are given by the Prosecution at T. 1851-1853 .
135 Trial Judgement, paras 569, 672, 711. The Trial Chamber also found that Martinovic’s responsibility pursuant to Article 7(3) of the Statute had been established, but found that his responsibility for these incidents was most appropriately described under Article 7(1) of the Statute : Trial Judgement, para. 569. In Count 1 of the Indictment Naletilic and Martinovic were charged with “forcible transfer” as an underlying offence of persecutions as a crime against humanity. Count 18 charged them with “unlawful transfer” as a grave breach of the Geneva Conventions of 1949. The Trial Chamber held that “the underlying act of forcible transfer as a crime against humanity may be proven even if not all the requirements of grave breaches of the Geneva Conventions of 1949 in Article 2(g) are met”: Trial Judgement, fn. 1659. The Appeals Chamber notes that the acts of forcible transfer which the Trial Chamber found constituted persecutions were in fact the same three incidents that it also found constituted unlawful transfer, namely the incidents of 13 and 14 June 1993, 29 September 1993 and 4 May 1993: Trial Judgement, paras 671-672. For the purposes of the present ground of appeal only, the term “unlawful transfer” is also meant to encompass the underlying act of forcible transfer as persecutions.
136 Trial Judgement, para. 569.
137 Trial Judgement, paras 570-571, 671-672, 711.
138 Martinovic Appeal Brief, paras 417, 494-498.
139 Appeals Hearing, T. 270.
140 Martinovic Appeal Brief, paras 495-496.
141 Naletilic Revised Appeal Brief, paras 143, 146 (citing, inter alia, Trial Judgement, para. 571); Appeals Hearing, T. 102. Naletilic also incorporates this argument to his 26th ground of appeal: Naletilic Revised Appeal Brief, para. 225.
142 Appeals Hearing, T. 102.
143 Prosecution Response to Martinovic Appeal Brief, para. 8.28 (citing 15 February 2000 Decision).
144 Prosecution Response to Martinovic Appeal Brief, para. 8.29 (citing 15 February 2000 Decision, para. 27).
145 Prosecution Response to Martinovic Appeal Brief, paras 8.29 (citing 15 February 2000 Decision, para. 27), 8.30, 8 .31; Confidential Prosecution Response to Martinovic Appeal Brief, paras 8.30-8. 31, fn. 344 (citing the evidence of Witnesses P, GG and WW, the summary of their statements in the Prosecution’s Chart of Witnesses and List of Facts (Under Seal ), Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a . “Stela”, Case No. IT-98-34-PT, Prosecutor’s List of Witnesses pursuant to Rule 65 ter (E)(iv), 11 October 2000 (Under Seal) (“Prosecution Rule 65 ter Witnesses’ List”) and a number of exhibits upon which the Trial Chamber relied, including Ex. PP 456 which according to the Prosecution were disclosed to Naletilic and Martinovic in September 2001). The Prosecution further refers to the summary of Witness Jeremy Bowen in its Rule 65 ter Witnesses’ List (Under Seal): Appeals Hearing, T. 250-251.
146 Prosecution Response to Naletilic Revised Appeal Brief, para. 7.9 (citing Indictment, paras 23-24, 26, 53-54); Appeals Hearing, T. 133.
147 Appeals Hearing, T. 133-135; Prosecution Response to Naletilic Revised Appeal Brief, para. 7.13; Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a. “Stela”, Case No. IT-98-34-A, Prosecution’s Respondent’s Brief to Mladen Naletilic’s Appeal Brief, 30 October 2003 (Confidential) (“Confidential Prosecution Response to Naletilic Revised Appeal Brief”), para. 7.14, fn. 406 (citing the summaries of the statements of Witnesses AB, WW, GG and two other witnesses in Prosecution Chart of Witnesses and List of Facts (Under Seal) and a number of exhibits upon which the Trial Chamber relied, including Ex. PP 456, which according to the Prosecution were disclosed to Naletilic and Martinovic in September 2001).
148 See Kordic and Cerkez Appeal Judgement, paras 132-134.
149 Blaskic Appeal Judgement, para. 213 (footnote omitted).
150 Indictment, para. 54.
151 Indictment, para. 54.
152 Indictment, para. 54.
153 Kupreskic Appeal Judgement, para. 90.
154 Indictment, paras 26, 54.
155 Indictment, para. 26.
156 Prosecution Response to Martinovic Appeal Brief, para. 8.31; Confidential Prosecution Response to Martinovic Appeal Brief, para. 8.31; Appeals Hearing, T. 250-252.
157 Prosecution Rule 65 ter Witnesses’ List (Under Seal), p. 9.
158 Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a. “Stela”, Case No. IT-98-34-PT, Prosecutor’s List of Exhibits pursuant to Rule 65 ter (E)(v), 11 October 2000 (Under Seal) (“Prosecution Rule 65 ter Exhibits’ List”). The Report of the European Community Monitoring Mission subsequently admitted as Exhibit PP 456.3 may be seen as having been generally referred to in the Prosecution Rule 65 ter Exhibits’ List under point 13, which was entitled “Reports of the European Community Monitoring Mission”. However, no mention was made in the Prosecution Rule 65 ter Exhibits’ List of the particular charges or paragraphs in the Indictment that the exhibits referred to therein went to prove.
159 Ntakirutimana Appeal Judgement, para. 27.
160 Prosecution Pre-Trial Brief, para. 2.22; T. 1833.
161 Prosecution Pre-Trial Brief, paras 2.23, 2.32; T. 1835-1836.
162 Prosecution Chart of Witnesses and List of Facts (Under Seal), Annex 2, p. 9.
163 Indictment, paras 26, 54.
164 Trial Judgement, paras 549-550 .
165 Prosecution Chart of Witnesses and List of Facts (Under Seal), pp. 11, 12, 21, 22, 25.
166 Indictment, paras 26, 34(a), 54.
167 Only the date of 13 June 1993 is mentioned, not the dates of 13 and 14 June 1993. However, the fact that this incident spanned over 13-14 June 1993 is undisputed.
168 Prosecution Chart of Witnesses and List of Facts (Under Seal), pp. 18, 25.
169 See supra, para. 24.
170 Blaskic Appeal Judgement, para. 218(b) and (c) (footnotes omitted).
171 Naletilic argues that the Indictment does not contain “any statement, concise or not, that (he( participated in the unlawful transfer of civilians on 13 and 14 June, and 29 September 1993”, and that “reversal is warranted when a defendant stands convicted under conduct not even generally plead in the indictment”: Naletilic Revised Appeal Brief, para. 146 (emphasis added ).
172 Trial Judgement, paras 557, 558, 566.
173 Indictment, paras 26, 54.
174 Indictment, para. 54.
175 Trial Judgement, paras 558, 566 .
176 Indictment, para. 54.
177 Trial Judgement, para. 702.
178 Trial Judgement, para. 621.
179 Trial Judgement, paras 621, 622 .
180 Trial Judgement, para. 622.
181 Martinovic Appeal Brief, paras 431, 434, 453, 454; Appeals Hearing, T. 208-209.
182 Prosecution Response to Martinovic Appeal Brief, paras 7.9 (citing 15 February 2000 Decision, para. 27), 7.13; Confidential Prosecution Response to Martinovic Appeal Brief, paras 7.10-7.11 (citing Prosecution Chart of Witnesses and List of Facts (Under Seal), pp. 22-23), 7.12 (citing Prosecution Chart of Witnesses and List of Facts (Under Seal), pp. 45-46); Appeals Hearing, T. 249-250.
183 See Blaskic Appeal Judgement, para. 218(b) and (c). Martinovic does not claim that the superior-subordinate relationship was inadequately pleaded. With respect to the persecutions charge, although the conviction was entered pursuant to Article 7(1) rather than Article 7(3), Martinovic was not convicted of personally committing the offence, so precise detailing of the incidents is not necessary; it is sufficient that the Prosecution identify the course of conduct on the part of the accused forming the basis for the conviction: see supra, para. 24.
184 Indictment, para. 34(d).
185 Indictment, para. 57.
186 Trial Judgement, paras 621, 702 .
187 Indictment, para. 26.
188 Indictment, para. 24 reads: “ MLADEN NALETILI] and VINKO MARTINOVI] are also, or alternatively, responsible as superiors for the acts of their subordinates pursuant to Article 7(3) of the Statute of the Tribunal. A superior is responsible for the acts of his subordinates if the superior knew, or had reason to know, that his subordinate was about to commit such acts, or had done so, and the superior failed to take the necessary and reasonable measures to prevent such further acts, or to punish the perpetrators thereof.”
189 Indeed, “an indictment which merely lists the charges against the accused without pleading the material facts does not constitute adequate notice”: Kvocka et al. Appeal Judgement, para . 28. See also Blaskic Appeal Judgement, para. 218.
190 See Blaskic Appeal Judgement, para. 218(b) and (c).
191 Indictment, para. 30.
192 Indictment, para. 32.
193 Indictment, paras 26, 57, read in conjunction.
194 See Kupreskic et al. Appeal Judgement, para. 88.
195 Trial Judgement, paras 621-622 .
196 Trial Judgement, paras 621 (Witnesses OO and F), 622 (Witness II) .
197 Indictment, para. 44.
198 Indictment, paras 26, 57.
199 15 February 2000 Decision, para . 27.
200 Confidential Prosecution Response to Martinovic Appeal Brief, paras 7.11-7.12. The Prosecution also invokes the summary of Witness AB: Appeals Hearing, T. 249. The Appeals Chamber notes that Martinovic does not contend that he was not put on notice of the plunder incidents to which Witness AB gave evidence.
201 Prosecution Chart of Witnesses and List of Facts (Under Seal), pp. 22-23.
202 Prosecution Chart of Witnesses and List of Facts (Under Seal), p. 23 (citing Indictment, para. 57, Count 21).
203 Prosecution Chart of Witnesses and List of Facts (Under Seal), pp. 45-46.
204 Prosecution Chart of Witnesses and List of Facts (Under Seal), p. 38.
205 T. 1804-1860.
206 Indictment, para. 54.
207 The Prosecution Pre-Trial Brief states that Count 21 “is largely based on the widespread looting of Bosnian Muslim homes that occurred after Bosnian Muslims were expelled from West Mostar” (para. 3.26), that the widespread practice of plunder of Bosnian Muslim property was carried out in the wake of the forced evictions (para. 3.2(d)) and that “after evicting the Bosnian Muslims, MARTINOVI] and his subordinates systematically looted their houses, often forcing Bosnian Muslim detainees to loot the houses of their Bosnian Muslim neighbours” (para. 2.33).
208 Prosecution Chart of Witnesses and List of Facts (Under Seal), pp. 22-23, 38, 45.
209 Prosecution Chart of Witnesses and List of Facts (Under Seal), pp. 23, 38, 46.
210 Trial Judgement, paras 427, 428, 453.
211 Naletilic Revised Appeal Brief, para. 176. See also Naletilic Revised Appeal Brief, para. 270.
212 Appeals Hearing, T. 89, 105.
213 Prosecution Response to Naletilic Revised Appeal Brief, para. 2.41.
214 See Indictment, para. 45.
215 Indictment, para. 14 alleges that “at all times relevant to this indictment, MLADEN NALETILI] was the commander of the KB”. Cf. Blaskic Appeal Judgement, para. 218(a) (citing Prosecutor v. Miroslav Deronjic, Case No. IT-02-61-PT, Decision on Form of the Indictment, 25 October 2002, para. 19).
216 See Indictment, para. 45.
217 Trial Judgement, paras 422, 426 .
218 See Trial Judgement, paras 349-351.
219 Trial Judgement, para. 428 (footnotes omitted).
220 Trial Judgement, paras 349-351 .
221 Infra, para. 167.
222 Prosecution Pre-Trial Brief, paras 3.12-3.15; T. 1804–1860.
223 Prosecution Chart of Witnesses and List of Facts (Under Seal), p. 41.
224 Trial Judgement, paras 311, 313 and 334.
225 Trial Judgement, paras 385, 388, 389.
226 Martinovic Notice of Appeal, pp. 2-4; Martinovic Appeal Brief, paras 2, 3.
227 Prosecution Pre-Trial Brief, p. 18. See Trial Judgement, para. 509.
228 Trial Judgement, para. 496.
229 Trial Judgement, para. 508.
230 Trial Judgement, para. 511.
231 Martinovic Appeal Brief, para . 13.
232 Martinovic Appeal Brief, paras 14-15.
233 Martinovic Appeal Brief, para . 15.
234 Kupreskic et al. Appeal Judgement, paras 385-386 (citing Celebici Appeal Judgement, para. 400).
235 Celebici Appeal Judgement, para. 400.
236 Martinovic Appeal Brief, para . 13. Cf. Martinovic Notice of Appeal, p. 4 (emphasis added): “?ign this particular case we are of the opinion that the court, having accepted charging in counts 13 and 14, went beyond the indictment, convicting Vinko Martinovic for the acts that not even the ?Pgrosecutor charged him exclusively with, not even in his closing argument”.
237 See Trial Judgement, paras 763, 767. The Appeals Chamber notes that Naletilic and Martinovic were convicted for grave breaches of Geneva Conventions III and IV, not for grave breaches of Geneva Conventions I or II.
238 Naletilic and Martinovic challenge paras 181 through 244 of the Trial Judgement: Naletilic Revised Appeal Brief, para . 272; Martinovic Appeal Brief, para. 4. The Appeals Chamber notes that paras 224 to 231 of the Trial Judgement address the requirements for Article 3 of the Statute and paras 232 to 244 of the Trial Judgement deal with the requirements for Article 5 of the Statute; therefore, these paragraphs are not relevant to the issue of the requirements of Article 2 of the Statute addressed by Naletilic and Martinovic.
239 Naletilic Notice of Appeal, pp . 10-11; Naletilic Revised Appeal Brief, paras 272-274; Martinovic Notice of Appeal, pp. 1-2; Martinovic Appeal Brief, paras 3-7.
240 Naletilic Notice of Appeal, pp . 10-11; Naletilic Revised Appeal Brief, para. 275; Martinovic Notice of Appeal, p. 2; Martinovic Appeal Brief, paras 8-9.
241 See supra, para. 14.
242 Naletilic Revised Appeal Brief, para. 275; Martinovic Appeal Brief, paras 8-9; Appeals Hearing, T. 177-178.
243 Trial Judgement, paras 176-223 .
244 Tadic Appeal Judgement, para. 80.
245 Tadic Appeal Judgement, para. 80 (footnotes omitted).
246 Aleksovski Appeal Judgement, para. 119; Blaskic Appeal Judgement, para. 170.
247 Tadic Appeal Judgement, para. 80.
248 Tadic Appeal Judgement, para. 82.
249 Prosecutor v. Dusko Tadic, a.k.a. “Dule”, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995 (“Tadic Appeal Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction”), paras 80-84.
250 Tadic Appeal Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, para. 80.
251 Tadic Appeal Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, para. 80.
252 Tadic Appeal Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, para. 80.
253 Tadic Appeal Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, para. 81.
254 Tadic Appeal Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, para. 83.
255 Tadic Appeal Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, paras 83-84.
256 Kordic and Cerkez Appeal Judgement, para. 311.
257 In some contexts, particularly with respect to a commander’s knowledge of his subordinates’ crimes, it suffices that an accused had “reason to know” of the facts in question: see Article 7(3) of the Statute.
258 Tadic Appeal Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, paras 71, 74, 78 and 81; Tadic Appeal Judgement, paras 80-82, 163-164. There would have to be an international armed conflict before a person can be a protected person, but the existence of such a conflict is the basis on which protection is granted.
259 See e.g. Celebici Appeal Judgement, fn. 652; Blaskic Trial Judgement, para. 69. This requirement applies also to Article 3 of the Statute, although in that context the conflict need not be international: see Kunarac et al. Appeal Judgement, para. 58.
260 Tadic Appeal Judgement, para. 271 (emphasis in original).
261 Kordic and Cerkez Appeal Judgement, para. 311.
262 With respect to war crimes, Article 8(2)(a)(i)(5) (like many other provisions of Article 8(2)) of the Elements of Crimes adopted by the Commission on 30 June 2000 requires proof that the “perpetrator was aware of factual circumstances that established the existence of an armed conflict ”: see PCNICC/2000/1/Add.2; Knut Dörmann, International Review of the Red Cross No. 839, 30 September 2000 (International Committee of the Red Cross ), pp. 771-795; Knut Dörmann with contributions by Louise Doswald-Beck and Robert Kolb, Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources and Commentary (Cambridge University Press, 2002), pp. 20 ff.; Antonio Cassese et al. (ed.), The Rome Statute of the International Criminal Court: A Commentary Vol. 1 (Oxford University Press, 2002), pp. 928-929; Knut Dörmann, Eve La Haye, Herman von Hebel, “The Elements of War Crimes”, in R.S. Lee (ed.), The International Criminal Court, Elements of Crimes and Rules of Procedure and Evidence (Transnational Publishers, 2001) (“Dörmann, La Haye, & Von Hebel ”), pp. 112-123.
263 For an overview of the discussions, see Dörmann, La Haye, & Von Hebel, pp. 112-123.
264 For an analysis of the principle of individual guilt in this context, see Kai Ambos, “Some Preliminary Reflections on the Mens Rea Requirements of the Crimes of the ICC Statute”, in: Lal Chand Vohrah et al. (ed.), Man’s Inhumanity To Man, Essays on International Law in Honour of Antonio Cassese (Kluwer International Law, 2003), pp 34-37.
265 The Appeals Chamber has routinely held that the requisite mental state, including knowledge and intent, may be inferred from circumstances: see e.g. Kvocka et al. Appeal Judgement, para. 243; Krstic Appeal Judgement, para. 33.
266 See e.g. Trial Judgement, paras 2-3.
267 See Trial Judgement, paras 191-202 (detailing the involvement of the Republic of Croatia in the conflict and noting that this involvement was internationally known, having been condemned by United Nations resolutions).
268 Prosecution Notice of Appeal, pp. 1-2; Prosecution Appeal Brief, para. 2.1.
269 Prosecution Appeal Brief, para . 2.3.
270 Prosecution Appeal Brief, paras 2.5-2.6.
271 Prosecution Appeal Brief, paras 2.5-2.6.
272 Prosecution Appeal Brief, para . 2.2.
273 Prosecution Appeal Brief, paras 2.7, 2.25.
274 Prosecution Appeal Brief, para . 2.10.
275 See also Appeals Hearing, T. 287: “each one of the victims referred to in the paragraphs related to the findings of ?the three incidents challenged by the Prosecutiong were Muslim”.
276 Prosecution Appeal Brief, para . 2.11.
277 Prosecution Appeal Brief, para . 2.12.
278 Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a. “Stela”, Case No. IT-98-34-A, Response Brief of Vinko Martinovic, 26 September 2003 (“Martinovic Response to Prosecution Appeal Brief”), para. 18 (citing Kvocka et al. Trial Judgement, para. 203 and Krnojelac Trial Judgement, paras 432-436).
279 Martinovic Response to Prosecution Appeal Brief, para. 22.
280 Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a. “Stela”, Case No. IT-98-34-A, Consolidated Reply Brief of the Prosecution, 13 October 2003 (“Prosecution Consolidated Reply Brief”), paras 2.13-2.32.
281 See Prosecution Appeal Brief, paras 2.3, 2.6, 2.13.
282 The specific instance concerns the Trial Chamber’s findings in para. 692 and fn. 1685 of the Trial Judgement: see infra, paras 136-139; Appeals Hearing, T. 295-296.
283 Kvocka et al. Appeal Judgement, para. 366. See also Krnojelac Appeal Judgement, para. 184; Blaski c Appeal Judgement, para. 164.
284 Krnojelac Appeal Judgement, para. 184. In the Krnojelac case the Appeals Chamber found that, since only non-Serb detainees were beaten in prison, it could reasonably be concluded that the beatings were committed because of the political or religious affiliation of the victims and hence that the acts were committed with the requisite discriminatory intent. The Appeals Chamber further stated that even assuming that the beatings took place in order to punish non-Serb detainees for violating regulations, “the decision to inflict such punishment arose out of a will to discriminate against them on religious or political grounds since punishment was only inflicted upon non-Serb detainees”: Krnojelac Appeal Judgement, para. 186.
285 Kordic and Cerkez Appeal Judgement, para. 950.
286 Kvocka et al. Appeal Judgement, para. 366.
287 Trial Judgement, paras 380-389, 676, 677.
288 Trial Judgement, para. 389.
289 Trial Judgement, paras 676, 677 .
290 Trial Judgement, para. 382.
291 Trial Judgement, paras 385-386, fn. 1010.
292 See supra, para. 48.
293 Trial Judgement, fn. 1010 (citing Witness II, T. 4973-4974).
294 Witness OO, T. 5938, 5956.
295 Trial Judgement, paras 271-272 .
296 Trial Judgement, para. 692.
297 Trial Judgement, fn. 1685.
298 Trial Judgement, paras 263-265 .
299 Trial Judgement, paras 289-290 .
300 Trial Judgement, para. 693.
301 Trial Judgement, para. 276 (footnotes omitted).
302 Appeals Hearing, T. 290. The Prosecution also refers to other facts which it claims amount to “circumstances surrounding the commission of the acts charged”: see Prosecution Appeal Brief, paras 2.8(1)-(4); Prosecution Consolidated Reply Brief, para. 2.19. The Appeals Chamber notes that these facts relate to the context of the attack against the BH Muslim population in and around Mostar.
303 Trial Judgement, fn. 1685 (citing Witness J, T. 1503-1504).
304 Trial Judgement, fn. 1685.
305 Trial Judgement, fn. 1685 (citing Witness SS, T. 6793).
306 Appeals Hearing, T. 295-296.
307 Appeals Hearing, T. 291 (citing Witness J, T. 1503); ibid., T. 292 (citing Witness PP, T. 6089); ibid ., T. 293 (citing Witness OO, T. 5940); ibid., T. 294 (citing Witness M, T. 1679); ibid., T. 294 (citing Witness K, T. 1581-1582 (private session)).
308 Appeals Hearing, T. 291-292.
309 Appeals Hearing, T. 287, 289- 290, 293-294.
310 Appeals Hearing, T. 293-294.
311 See Kvocka et al. Appeal Judgement, para. 23.
312 Trial Judgement, fns 722-724, 734, 736, 1685.
313 Witness J, T. 1495-1496; Witness OO, T. 5935.
314 Trial Judgement, fns 722, 724 .
315 Witness H, T. 1280-1281, 1294 (private session); Witness KK, T. 5178, 5183; Witness YY, T. 7252 (private session ); Trial Judgement, fns 722-724.
316 Trial Judgement, fn. 1685.
317 Trial Judgement, para. 692, fn . 1685. The Appeals Chamber notes in this regard that Witnesses J, PP, OO, M and K, as well as Witnesses H, KK and YY did not give evidence that the reason why they had been selected to work for Martinovic’s unit was that they were Muslims: see Witness J, T. 1501; Witness PP, T. 6076-6081, 6084; Witness OO, T. 5938; Witness M, T. 1674; Witness K, T. 1576, 1582 (private session); Witness H, T. 1309-1310, 1312-1313; Witness YY, T. 7264. Witness KK gave evidence that he was in a group of Muslim civilians taken by HVO soldiers to Stela’s headquarters: Witness KK, T . 5182-5184. According to this witness, Stela received the prisoners and told them that “there would be no problems”: Witness KK, T. 5184.
318 Appeals Hearing, T. 287, 289- 290, 293-294.
319 Appeals Hearing, T. 293-294.
320 According to the Trial Judgment, the victims of unlawful labour in the area of responsibility of the Vinko Skrobo ATG were Witnesses A, AF, EE, F, H, I, II, J, K, KK, M, MG, NN, OO, Salko Osmic, PP, S, SS, YY: Trial Judgement, fns 722-728, 734, 736. Out of the four victims of the wooden rifles incident, Witnesses J, OO and PP gave evidence: Trial Judgement, paras 277-279, 290. The Appeals Chamber notes that it is apparent from the evidence of Witnesses A, AF, EE, F, H, I, II, J, K, MG, NN, OO, Salko Osmic, PP and S that they were Muslims: Witness A, T. 492; Witness AF, T. 15916; Witness EE, T. 4509 (private session); Witness F, T. 1087; Witness H, T. 1310; Witness I, T. 1383; Witness II, T. 4939; Witness J, T. 1494 (private session); Witness K, T. 1569; Witness MG, T. 14207 (private session); Witness NN, T. 5871-5872; Witness OO, T. 5935; Witness Salko Osmic, T. 3120; Witness PP, T. 6072, 6083; Witness S, T. 2506, 2649. Regarding the beating in Martinovic’s area of command, there is insufficient evidence as to whether the “Professor” was Muslim.
321 Trial Judgement, para. 46. Martinovic conceded that a majority of the detainees at the Heliodrom were BH Muslims: Appeals Hearing, T. 308.
322 Trial Judgement, para. 431, fn . 1139. The Prosecution conceded that BH Croats were also detained at the Heliodrom : Appeals Hearing, T. 293-294.
323 Although it was not referred to by the Parties, the Appeals Chamber notes the evidence of Witness H that he believed that he was arrested and detained at the Heliodrom because he was Muslim: Witness H, T. 1309-1310. Witnesses J and OO believed the reason for their arrest to be that they were Muslims: Witness, J, T. 1497; Witness OO, T. 5935. The Appeals Chamber considers that, in light of the Trial Chamber’s findings that a “majority” of those detained at the Heliodrom were BH Muslims and that BH Croats were also detained there, the evidence of these witnesses is insufficient to show that a discriminatory pre-selection had taken place.
324 Trial Judgement, para. 676.
325 Trial Judgement, para. 702.
326 Prosecution Notice of Appeal, p. 3; Prosecution Appeal Brief, para. 4.1.
327 Trial Judgement, para. 670.
328 Trial Judgement, para. 670.
329 Prosecution Appeal Brief, paras 4.2, 4.28. The Prosecution does not seek an increase in sentence: Prosecution Appeal Brief, para. 6.1.
330 Prosecution Appeal Brief, paras 4.3, 4.28. The Prosecution does not seek an increase in sentence: Prosecution Appeal Brief, para. 6.1.
331 Prosecution Appeal Brief, para . 4.5.
332 Prosecution Appeal Brief, para . 4.5 (citing Blaskic Trial Judgement, para. 234 in turn citing “Article 7(2)(d) of the Statute of the International Criminal Court (Cf. in particular the 1996 ILC Report, pp. 100-101)”).
333 Prosecution Appeal Brief, para . 4.22.
334 Stakic Appeal Judgement, paras 274-308.
335 Krnojelac Appeal Judgement, para. 218.
336 Naletilic Notice of Appeal, pp . 4, 5. The Prosecution responded that it considered this ground as having been withdrawn: Prosecution Response to Naletilic Appeal Brief, para. 5.1. Naletilic offered no reply.
337 Trial Judgement, para. 94.
338 Trial Judgement, para. 116.
339 Trial Judgement, paras 326, 333, 696.
340 Trial Judgement, para. 453. See also ibid., paras 390-438, particularly paras 394, 404, 411-412, 428, 436, 438.
341 Trial Judgement, paras 558, 566, 571.
342 Trial Judgement, para. 631.
343 Trial Judgement, paras 672, 682, 701, 705-706, 711-715.
344 Naletilic Notice of Appeal, p . 2; Naletilic Revised Appeal Brief, paras 2, 6-9.
345 Naletilic Revised Appeal Brief, para. 6.
346 Naletilic Revised Appeal Brief, para. 6.
347 Naletilic Revised Appeal Brief, para. 71.
348 Naletilic Revised Appeal Brief, para. 67; Naletilic Reply Brief, para. 13.
349 Naletilic specifically refers to paragraphs 88 and 428 and footnotes 102, 218, 233, 259, 280-282, 284-288, 322, 323, 325, 327-329, 338, 473, 475, 479, 480, 482, 703, 1061, 1132 and 1146 of the Trial Judgement: Naletilic Revised Appeal Brief, paras 6, 67. The Appeals Chamber notes that footnotes 338 and 703 do not refer to Ex. PP 704 at all. Further, Naletilic refers to footnotes 482 and 1061 of the Trial Judgement, without alleging a particular error or arguing how the footnotes in question support his general submission that the Trial Chamber erred in relying on Ex. PP 704 and how this lead to a miscarriage of justice.
350 Trial Judgement, para. 88, fn . 233; ibid., para. 95, fn. 259.
351 Trial Judgement, para. 86, fn . 218.
352 Trial Judgement, para. 40, fn . 102 (referring to Željko Bosnjak); ibid., para. 115, fns 322-323, 325, 327-328 (Željko Bosnijak, Miroslav Kolobara, Romeo Bla‘evic, Ivan Hrkac, Robert Medic); ibid., para. 168, fn. 473 (Miroslav Kolobara); ibid., para . 169, fns 479-480 (Robert Kolobaric). The Appeals Chamber also rejects Naletilic’s contentions that the Trial Chamber erred in finding that Robert Medic was also called “Robo” and other nicknames – a fact that was demonstrated by other evidence – and that Ex. PP 704 listed at least sixteen persons named “Robert”, which is irrelevant as it listed only one “Robert Medic”: see Naletilic Revised Appeal Brief, para. 72. In addition, the Appeals Chamber rejects Naletilic’s claim that Ex. PP 704 lists Željko Bosnjak as a member of the Defence Department and not the KB; the exhibit makes clear that members of the Defence Department are included under the KB. See Naletilic Revised Appeal Brief, para. 68.
353 Naletilic Revised Appeal Brief, paras 6 and 67.
354 Trial Judgement, para. 102.
355 Although footnote 286 of the Trial Judgement refers solely to Exhibit PP 704 to support the Trial Chamber’s conclusion that Dinko Knežovic was subordinated to Martinovic, further corroboration is to be found in Trial Judgement, fn. 711 (citing Witness I, T. 1391-92; Witness J, T 1503; Witness PP, T 6078-79, Witness MI, T .14342 (private session(; Witness MT, T. 15295).
356 Naletilic Revised Appeal Brief, para. 71.
357 Prosecution Response to Naletilic Appeal Brief, fn. 128.
358 Infra, para. 167.
359 Naletilic Revised Appeal Brief, paras 73-74.
360 Naletilic Revised Appeal Brief, para. 76.
361 See Trial Judgement, para . 428.
362 Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a. “Stela”, Case No. IT-98-34-A, Decision on Prosecution’s Motions for Additional Evidence in Favour of Mladen Naletilic and for Protective Measures, 13 October 2005 (Confidential) (“Confidential Decision on Prosecution Motions for Additional Evidence and for Protective Measures”), p. 4; Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a . “Stela”, Case No. IT-98-34-A, Prosecution’s Motion for Additional Evidence in favour of Mladen Naletilic, 6 October 2005 (Confidential) (“Prosecution Rule 115 Motion”).
363 Naletilic Revised Appeal Brief, para. 77.
364 Footnotes omitted.
365 Trial Judgement, para. 431, fn . 1147.
366 Trial Judgement, para. 431.
367 Trial Judgement, para. 436.
368 Trial Judgement, para. 431.
369 Witness HH, T. 4814-4818.
370 Naletilic Revised Appeal Brief, para. 7. Naletilic alleges that the Trial Chamber erred and abused its discretion in giving the testimony of Witnesses Falk Simang and Ralf Mrachacz any weight: Naletilic Notice of Appeal, p. 3. As noted by the Prosecution, Naletilic does not substantiate his allegations regarding the testimony of Witness Ralf Mrachacz in his Revised Appeal Brief: Prosecution Response to Naletilic Appeal Brief, para. 4.1. Naletilic only does so in his Reply Brief, without having sought leave, thus depriving the Prosecution from the opportunity to respond: see Naletilic Reply Brief, para . 19. Therefore, the Appeals Chamber will limit its consideration of Naletilic’s arguments under his fourth ground of appeal to the extent that they relate to Witness Falk Simang’s testimony.
371 Naletilic Revised Appeal Brief, paras 7, 85.
372 Naletilic Revised Appeal Brief, para. 7. The Appeals Chamber notes that Naletilic does not indicate what are the “many instances” where in his submission “the Trial Chamber relied solely on the testimony in question as proof of his command role and as proof of (his( command responsibility for the crimes of others”.
373 Trial Judgement, fn. 48.
374 Naletilic Revised Appeal Brief, para. 87.
375 Naletilic Revised Appeal Brief, para. 87.
376 Naletilic Revised Appeal Brief, para. 88.
377 Witness Falk Simang, T. 3789.
378 Witness Falk Simang, T. 3793.
379 Naletilic Revised Appeal Brief, paras 90, 91. See also Naletilic Reply Brief, para. 23.
380 Naletilic Revised Appeal Brief, para. 99.
381 Prosecution Response to Naletilic Appeal Brief, para. 4.19.
382 See Trial Judgement, para . 193, fn. 533.
383 Naletilic Revised Appeal Brief, paras 88-89 (citing Ex. PP 354.1); Appeals Hearing, T. 167, 168.
384 Naletilic Revised Appeal Brief, para. 89; Appeals Hearing, T. 167, 168 (citing Trial Judgement, fn. 261, Witness NN, Witness NP).
385 Trial Judgement, para. 91, fn . 240 (citing Witness Falk Simang, T. 3787).
386 See Trial Judgement, fn . 208.
387 Appeals Hearing, T. 162, 168.
388 Trial Judgement, fn. 261 states in relevant part as follows: “For some time Ivan Andabak was also assistant commander of the HVO Main Staff for the professional units, which was probably after the KB ceased to exist at the end of 1993, witness NM, T 12755 ?private sessiong; witness NP for late 1993 or 1994, T 13078; witness NR for December 1995, T 13295-13296 ? private sessiong; see also exhibit PP 299.1, which mentions Colonel Ivan Andabak as representative of the HVO Main Staff for 15 April 1993”. The Appeals Chamber notes that the correct citation to the evidence of Witness NM should be: Witness NM, T. 12753, 12754-12755 (private session).
389 Naletilic Revised Appeal Brief, paras 94-98, 100-105.
390 Trial Judgement, para. 30.
391 Trial Judgement, para. 31.
392 Trial Judgement, para. 31.
393 Trial Judgement, para. 32.
394 Trial Judgement, para. 33.
395 Naletilic Revised Appeal Brief, para. 104.
396 Witness Falk Simang, T. 3894.
397 Naletilic Revised Appeal Brief, para. 94.
398 Naletilic Revised Appeal Brief, paras 97, 98, 100, 102, 105.
399 Trial Judgement, fn. 426.
400 Naletilic Revised Appeal Brief, para. 94.
401 Naletilic Revised Appeal Brief, para. 98.
402 Tadic Appeal Judgement, para. 65; Aleksovski Appeal Judgement, para. 62; Celebici Appeal Judgement, paras 492, 506; Kupreskic et al. Appeal Judgement, para. 33; Kunarac et al. Appeal Judgement, para. 268; Kordic and Cerkez Appeal Judgement, paras 274-275; Kvocka et al. Appeal Judgement, para. 576.
403 Naletilic Revised Appeal Brief, para. 95.
404 Trial Judgement, para. 26, fn . 48.
405 Naletilic Revised Appeal Brief, para. 96.
406 Witness Falk Simang, T. 3805- 3806. See Trial Judgement, para. 358, fn. 956.
407 See Naletilic Revised Appeal Brief, para. 105. Naletilic was asked by the Appeals Chamber to identify the challenged finding in the Trial Judgement: see Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a. “Stela”, Case No. IT-98-34-A, Letter from the Senior Legal Officer Regarding Preparation of the Appeals Hearing in the Naletilic and Martinovic Case (“SLO Letter”), 16 September 2005, p.1, but could not do so.
408 Naletilic Revised Appeal Brief, para. 101; Witness Falk Simang, T. 3817.
409 Naletilic Revised Appeal Brief, para. 103.
410 Naletilic Revised Appeal Brief, para. 84.
411 Naletilic Reply Brief, para. 22, according to which “(t(he Trial Chamber’s finding that Witness Simang, pursuant to his testimony, was a member of the KB until February or March 1993 ?sicg, and Mrachacz until mid 1995 (fn. 240 of the judgement) is but another example of the Trial Chamber construing these witness’ testimony as weighty while disregarding defence witnesses who testified the KB disbanded in late 1993. See, T 13190 .” This argument has been dealt with above: see supra, para. 182.
412 Naletilic Revised Appeal Brief, para. 92.
413 Trial Judgement, para. 30.
414 Trial Judgement, para. 529.
415 Trial Judgement, para. 531.
416 Witness Falk Simang, T. 3795.
417 Naletilic Revised Appeal Brief, para. 93.
418 Witness Falk Simang, T. 3795.
419 Naletilic Revised Appeal Brief, paras 108, 121.
420 Naletilic Revised Appeal Brief, paras 109, 121.
421 Naletilic Revised Appeal Brief, para. 109.
422 Naletilic Revised Appeal Brief, para. 115.
423 Trial Judgement, fn. 72 (citing Witness Falk Simang, T. 3794-3796); ibid., fn. 1461.
424 Naletilic Revised Appeal Brief, para. 111.
425 Witness Falk Simang, T. 3817, 3820.
426 Naletilic Revised Appeals Brief, para. 114.
427 Witness Falk Simang, T. 3817, 3819.
428 Naletilic Revised Appeal Brief, paras 118, 119.
429 Naletilic Reply Brief, para. 35. See also ibid., para. 19, where Naletilic refers to the testimony of Witness Ralf Mrachacz (T. 2758) according to which the second action in Doljani was aborted.
430 Supra, para. 188.
431 I.e., the witness’ testimony that Muslims were captured during the first operation and brought for interrogation to the base where “General Tuta” and Andabak interrogated them: Witness Falk Simang, T. 3798-3799.
432 See Trial Judgement, para . 125. See also Witness Ralf Mrachacz, T. 2711, 2712.
433 See Witness Ralf Mrachacz, T. 2711-2712.
434 Naletilic Revised Appeal Brief, para. 120.
435 Witness Falk Simang, T. 3830.
436 Naletilic Notice of Appeal, pp . 2, 4; Naletilic Revised Appeal Brief, paras 8, 127-131. Naletilic specifically points to fns 54-58, 67, 72, 82, 350, 361, 362, 371, 374-381, 384, 728, 912, 929, 1456, 1461, 1462, 1472, 1494 and 1700 and paras 28, 124, 126, 131, 132, 596, 609 and 610 of the Trial Judgement. The Appeals Chamber notes that, contrary to Naletilic’s assertion, footnotes 728 and 912 of the Trial Judgement do not refer to the Rados Diary but respectively to the testimony of Witness A that a person named Asif Rados was wounded and the testimony of Witness B that a person named Hasan Rados was beaten . The Appeals Chamber notes further that the references by the Trial Chamber to the Rados Diary at fns 929, 1461 and 1462 of the Trial Judgement are irrelevant to the Trial Chamber’s finding on Naletilic’s command position, while paras 609 and 610 and fn. 1494 of the Trial Judgement go to the Trial Chamber’s finding that “(t(he Indictment in paragraph 56 only refers to the mosque in Sovici” and that “(t(he Chamber (…( makes no findings with regard to the reliability of (W(itness Falk Simang’s testimony or the Rados Diary relating to the alleged involvement of the KB and the accused Mladen Naletilic in the destruction of the mosque in Doljani ”.
437 Prosecution Response to Naletilic Appeal Brief, para. 2.3, fn. 16 (according to which this document is not referred to in paras 92 to 96 of the Trial Judgement, nor in any of the accompanying footnotes ).
438 Trial Judgement, paras 126, 131, 132; ibid., fns 361, 362, 371, 374-381, 384.
439 Trial Judgement, fn. 54.
440 Trial Judgement, fn. 55.
441 Trial Judgement, para. 124 (footnotes omitted).
442 Naletilic Revised Appeal Brief, paras 8, 130, 131.
443 Naletilic Revised Appeal Brief, paras 128-129.
444 Naletilic Revised Appeal Brief, paras 8, 127, 131.
445 Naletilic Revised Appeal Brief, paras 127, 131.
446 Naletilic Revised Appeal Brief, para. 8.
447 Naletilic Revised Appeal Brief, para. 130.
448 Naletilic Revised Appeal Brief, para. 130 (emphasis added).
449 Semanza Appeal Judgement, para. 159.
450 Appeals Hearing, T. 97.
451 T. 16942.
452 T. 16932.
453 Naletilic Revised Appeal Brief, para. 131.
454 Supra, Section VI.A.2( c).
455 Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a. “Stela”, Case No. IT-98 -34-T, Decision on the Admission of Exhibits Tendered During the Rebuttal Case, 23 October 2002 (Confidential) (“Decision on Admission of Rebuttal Exhibits”), p . 2.
456 Decision on Admission of Rebuttal Exhibits (Confidential), p. 3.
457 Naletilic Revised Appeal Brief, para. 129.
458 Prosecutor v. Stanislav Gali c, Case No. IT-98-29-AR73.2, Decision on Interlocutory Appeal Concerning Rule 92bis(C), 7 June 2002 (“Galic 92 bis Decision”), para. 31; see also Prosecutor v. Slobodan Milosevic, Case No. IT-02-54-AR73. 4, Decision on Interlocutory Appeal on the Admissibility of Evidence-In-Chief in the Form of Written Statements, 30 September 2003 (“Milosevic 92 bis Decision”), paras 9-10.
459 Galic 92 bis Decision, para. 28; Milosevic 92 bis Decision, para. 13.
460 Galic 92 bis Decision, para. 29.
461 Prosecution Response to Naletilic Appeal Brief, para. 4.52. See also ibid., fn. 272 where the Prosecution stresses that Naletilic stated only once that the evidence from the diary could only be presented through Alojz Rados himself, but did not take any further steps : Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a. “Stela”, Case No. IT-98-34-PT, Statement of the Defence of Mladen Naletilic to the Prosecutor’s Statement in Respect of Pre-Trial Filings of 11 October 2000, 25 October 2000, p. 4.
462 Naletilic Reply Brief, paras 37, 38, 39.
463 See Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a. “Stela”, Case No. IT-98-34-T, Prosecutor’s Ex Parte Submission concerning Admission of the Rados Diary, 15 October 2002 (Confidential); Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a. “Stela”, Case No. IT-98-34-T, Prosecutor’s Motion for Issuance of a Summons (Alojz Rados) and Request for Judicial Assistance Directed to the Federation of Bosnia and Herzegovina, 13 September 2002 (Confidential). The Prosecution lifted the ex parte status of these two filings on 14 October 2005: Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a. k.a. “Stela”, Case No. IT-98-34-A, Notice Lifting Ex Parte Status of Prosecutor’s Motion for Issuance of a Summons (Alojz Rados) and Request for Judicial Assistance Directed to the Federation of Bosnia and Herzegovina of 13 September 2002, 14 October 2005 (Confidential); Notice Lifting Ex Parte Status of Prosecutor’s Ex Parte Submission concerning Admission of the Rados Diary of 15 October 2002, 14 October 2005 (Confidential). In addition, the Appeals Chamber lifted the ex parte status of the following filings: Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a. “Stela”, Case No. IT-98-34-T, Decision on the Prosecutor’s Request for Issuance of a Summons (Alojz Rados), Request for Judicial Assistance Directed to the Federation of Bosnia and Herzegovina, 17 September 2002 (Confidential) and “the confidential ?…g letter with attachments from the Embassy of Bosnia and Herzegovina of 16 October 2002 filed on 18 October 2002”: see Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a. “Stela”, Case No. IT-98-34-A, Decision on Naletilic’s Urgent Motion for Production of Information Regarding the Rados Diary, 19 October 2005 (Confidential ), whereby Naletilic was given seven additional days from the date of the decision to file further submissions regarding the filings for which the ex parte status had been lifted. Naletilic did not file any further submissions.
464 Galic 92 bis Decision, paras 29-30; see also Milosevic 92 bis Decision, para. 13 .
465 In this context, it should be noted that in the United States, a common law country with a relatively robust conception of a criminal defendant’s right to confront the witnesses against him, the Supreme Court has recently clarified that this right is not violated by the introduction of out-of-court statements or documents that are not testimonial in nature: see Crawford v. Washington, 541 U.S. 36, 51 (2004).
466 Case No. IT-98-31-Misc. 1, Order and Search Warrant, signed on 18 September 1998 and filed on 28 September 1998, pp. D176-189 (Confidential) (“Search Warrant”).
467 Naletilic Notice of Appeal, pp . 2-3; Naletilic Revised Appeal Brief, para. 10. See also ibid., para . 18, in which, referring to the Search Warrant, Naletilic indicates that during the conflict, part of the Tobacco Station was used as the KB headquarters and that, when the war ended in 1995, it housed the War Military Archive and the offices, depots and storage facilities of the Siroki Brijeg Regiment, the KB, the 22nd Sabotage Squadron and the Siroki Brijeg HVO Military Police.
468 Naletilic Notice of Appeal, p . 3.
469 Naletilic Revised Appeal Brief, paras 12, 13.
470 Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a. “Stela”, Case No. IT-98-34-T, Order Relating to Request for All Documents Relating to Search Warrant Issued on the 18th September 1998 and Signed by the Honorable Judge May and Decision on Motions for Extension of Time to File Objections Concerning Admissibility of Evidence Seized Pursuant to Search Warrant”, 1 November 2001 (Confidential) (“Access Decision”).
471 Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a. “Stela”, Case No. IT-98-34-AR73 .5, Decision on Application by Mladen Naletelic for Leave to Appeal the Order and Decision of Trial Chamber I Section A dated 1 November 2001, 18 January 2002 (“Decision Denying Leave to Appeal”).
472 Naletilic Revised Appeal Brief, para. 23.
473 Naletilic Revised Appeal Brief, para. 31.
474 Naletilic Revised Appeal Brief, para. 36.
475 Naletilic Revised Appeal Brief, paras 38, 66.
476 Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-A, Decision on Appellants Dario Kordic and Mario Cerkez’s Request for Assistance of the Appeals Chamber in Gaining Access to Appellate Briefs and Non-Public Post Appeal Pleadings and Hearing Transcripts filed in the Prosecutor v. Tihomir Blaskic, 16 May 2002, para. 14; Prosecutor v. Dario Kordic and Mario Cerkez, Case No. IT-95-14/2-A, Order on Pasko Ljubicic’s Motion for Access to Confidential Supporting Material, Transcripts and Exhibits in the Kordic and Cerkez Case, 19 July 2002, p. 4; Prosecutor v. Blagoje Simic, Milan Simic, Miroslav Tadic, Stevan Todorovic and Simo Zaric, Case No. IT-95-9-PT, Decision on Motion for Judicial Assistance to be Provided by SFOR and Others, 18 October 2000, para. 61.
477 Access Decision (Confidential ); Decision Denying Leave to Appeal.
478 Access Decision (Confidential ), p. 3.
479 Access Decision (Confidential ), p. 3.
480 Naletilic Revised Appeal Brief, para. 43.
481 Naletilic Revised Appeal Brief, para. 47.
482 Naletilic Revised Appeal Brief, paras 48-50.
483 Naletilic Revised Appeal Brief, paras 51-54.
484 Pages 2-3, II, of the Naletilic Notice of Appeal read as follows: “The Trial Chamber erred and abused its discretion in denying the accused the right to challenge the validity of the Underlying affidavit in support of the search warrant executed on or about the 20th day of September 1998 in Siroki Brijeg and admitting evidence obtained as the result of said search warrant. (Order of 1 November 2001 & Decision of 14 November 2001). Relief Sought : The Accused seeks to independently review the underlying affidavit to determine if there was probable cause for the Judge to sign the search warrant, and if not, then the opportunity to challenge the underlying affidavit in support of the search warrant. Further, the Accused seeks the exclusion of all evidence seized pursuant to said search warrant.”
485 At the Appeals Hearing, Naletilic was asked to further develop his submission regarding the alleged error on the admission of evidence secured by the Search Warrant and whether, at trial, he challenged the admission of evidence on this basis: Prosecutor v. Mladen Naletilic, a.k. a. “Tuta”, and Vinko Martinovic, a.k.a. “Stela”, Case No. IT-98-34-A, Scheduling Order for Appeals Hearing, 16 September 2005 (“Scheduling Order for Appeals Hearing ”), p. 2. He did not do so: Appeals Hearing, T. 172.
486 See Prosecution Response to Naletilic Revised Appeal Brief, paras 3.17-3.29.
487 Cf. M. Nikolic Decision on Motion to Amend, pp. 2-3; B. Simic Decision on Motion to Amend, pp. 4- 5.
488 Prosecution Response to Naletilic Revised Appeal Brief, para. 3.25.
489 Tadic Appeal Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, para. 55. See also, Prosecutor v. Dragan Nikolic, Case No. IT-94-2-PT, Decision on Defence Motion Challenging the Exercise of Jurisdiction by the Tribunal, 9 October 2002, para. 97.
490 Prosecutor v. Dario Kordic and Mario Cerkez, Case No. IT-95-14/2-T, Decision Stating Reasons for Trial Chamber’s Ruling of 1 June 1999 Rejecting Motion to Suppress Evidence, signed 25 June 1999 and filed 28 June 1999 (“Kordic Decision Rejecting Motion to Suppress Evidence”), p. 3.
491 See Kordic Decision Rejecting Motion to Suppress Evidence, pp. 4-5.
492 Naletilic Revised Appeal Brief, paras 63-66.
493 See Prosecution Response to Naletilic Revised Appeal Brief, para. 3.31.
494 Cf. M. Nikolic Decision on Motion to Amend, pp. 2-3; B. Simic Decision on Motion to Amend, pp. 4- 5.
495 Naletilic Revised Appeal Brief, para. 59.
496 Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a. “Stela”, Case No. IT-98-34-T, Decision on Accused Naletilic’s Reasons why Documents Seized per Search Warrant are Inadmissible, 14 November 2001, pp. 2-3.
497 Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a. “Stela”, Case No. IT-98-34-T, Accused Naletilic’s Reasons why Documents Seized per Search Warrant are Inadmissible, 6 November 2001 (Confidential), pp. 4-5; Naletilic Revised Appeal Brief, paras 57-64.
498 Naletilic Notice of Appeal, pp . 3-4; Naletilic Revised Appeal Brief, para. 122; Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a. “Stela”, Case No. IT-98-34-A, Mladen Naletilic’s Revised Appeal Brief, 10 October 2003 (Confidential) (“Confidential Naletilic Revised Appeal Brief”), para. 122.
499 Prosecutor v. Slobodan Milosevi c, Case No. IT-99-37-AR73, IT-01-50-AR73, IT-01-51-AR73, Reasons for Decision on Prosecution Interlocutory Appeal from Refusal to Order Joinder, 18 April 2002 (“Milosevic Joinder Decision”), para. 6.
500 Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a. “Stela”, Case No. IT-98-34-T, Decision on the Accused Naletilic’s Reply to Prosecutor’s Motion on Defence Witness Issues and Renewed and New Requests for Relief, and Request for Issuance of Subpoena Pursuant to Rule 54, 4 June 2002 (Confidential), p. 3 (footnotes omitted).
501 See Prosecutor v. Slobodan Milosevic, Case No. IT-02-54-AR73.6, Decision on the Interlocutory Appeal by the Amici Curiae against the Trial Chamber Order Concerning the Presentation and Preparation of the Defence Case, 20 January 2004, para. 7.
502 Naletilic Reply Brief, para. 36.
503 Naletilic Revised Appeal Brief, para. 122; Confidential Naletilic Revised Appeal Brief, para. 122; Appeals Hearing, T. 160-161.
504 In most Exhibits Witness Falk Simang merely mentions the Prosecution’s promise to protect his life and that he would suffer no disadvantages: Exhibits DD1/23.6 et seq.
505 Witness Falk Simang, T. 3848- 3849, 3921-3926.
506 Trial Judgement, fn. 48.
507 Kordic and Cerkez Trial Judgement, para. 629; see also Kordic and Cerkez Appeal Judgement, paras 254 et seq., 292-294.
508 Naletilic Notice of Appeal, p . 4.
509 Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a. “Stela”, Case No. IT-98-34-T, Decision on the Prosecution’s Supplemental Filing Concerning the Rebuttal Case, 9 October 2002 (Confidential) (“Confidential Decision of 9 October 2002”), p. 3.
510 Naletilic Notice of Appeal, p . 4; Naletilic Revised Appeal Brief, paras 133, 135-137; Confidential Naletilic Revised Appeal Brief, para. 136.
511 Prosecution Response to Naletilic Revised Appeal Brief, paras 4.57-4.60.
512 Prosecution Response to Naletilic Revised Appeal Brief, para. 4.61.
513 Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a. “Stela”, Case No. IT-98-34-T, Filing and Scheduling Order, 29 August 2002, p. 2.
514 The Prosecution had earlier put passages of the Rados Diary to Defence Witnesses NE (T. 11834-11836 (private session )), NL (T. 12700-12707 (private session)) and NW (T. 14987-14990 (private session )) on cross-examination and had tendered “P 928, (the( hand-written Diary”, as an exhibit during the cross-examination of Witness NE: Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a. “Stela”, Case No. IT-98-34-T, Prosecutor’s Submission of Cross-Examination Exhibits Concerning Witness NE, 3 June 2002 (Confidential and Under Seal) (“Prosecution Submission of Witness NE Exhibits ”). However, the Trial Chamber reserved its position as to the admissibility of the Rados Diary pending further information: Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a. “Stela”, Case No. IT-98-34-T, Decision on the Admission of Exhibits Tendered through Witnesses NE and NH, 28 June 2002 (“Decision on Witnesses NE and NH Exhibits”), p. 4; Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a. “Stela”, Case No. IT-98-34-T, Order for Additional Information, 4 September 2002.
515 Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a. “Stela”, Case No. IT-98-34-T, Prosecution’s Filing Concerning Rebuttal Case, 13 September 2002 (Confidential and Under Seal) (“Prosecution Filing on Rebuttal Case”), paras 3(b), 4.
516 Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a. “Stela”, Case No. IT-98-34-T, Prosecution’s Supplemental Filing Concerning Rebuttal Case, 3 October 2002 (Confidential and Under Seal), para. 2(b) and (d).
517 Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a. “Stela”, Case No. IT-98-34-T, Accused Naletilic’s Submission Concerning Prosecution’s Rebuttal Witness/Evidence Filing, 18 September 2002 (Confidential and Under Seal), paras 2, 4, 6; Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a. “Stela”, Case No. IT-98-34-T, Accused Naletilic’s Objections to Additional Rebuttal Witnesses and Violation of Previous Order Concerning the Rebuttal Case, 7 October 2002 (Confidential ).
518 Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a. “Stela”, Case No. IT-98-34-T, Decision on the Prosecution’s Filing Concerning Rebuttal Case, 20 September 2002 (Confidential) (“Decision on Rebuttal Witnesses”), p. 3.
519 Decision on Admission of Rebuttal Exhibits (Confidential), p. 4.
520 The Trial Chamber held that “ translations of exhibits are not admitted as separate documents and that a complete translation of the Rados Diary is required”. It requested the Registry to arrange that the English translation of the Rados Diary be compared with the admitted version of PP 928c and amended where necessary to match PP 928c. Exhibits P 928, P 928a, P 928b, P 928d, P 928e, P 928f, P 928g and P 928f/1 were denied admission: Decision on Admission of Rebuttal Exhibits (Confidential), pp. 4, 5.
521 Confidential Decision of 9 October 2002, p. 2 (citing Decision on Rebuttal Witnesses (Confidential)).
522 See Prosecution Response to Naletilic Revised Appeal Brief, paras 4.51-4.61; Confidential Prosecution Response to Naletilic Revised Appeal Brief, para. 4.57.
523 Naletilic Revised Appeal Brief, para. 136; Confidential Naletilic Revised Appeal Brief, para. 136.
524 Prosecution Response to Naletilic Appeal Brief, para. 4.59.
525 Confidential Decision of 9 October 2002, pp. 2, 3; Decision on Admission of Rebuttal Exhibits (Confidential), pp. 2, 3.
526 Decision on Witnesses NE and NH Exhibits, pp. 3-4.
527 Appeals Hearing, T. 98-99.
528 Naletilic Notice of Appeal, p . 4; Naletilic Revised Appeal Brief, para. 135
529 Naletilic Notice of Appeal, p . 4.
530 See Celebici Appeal Judgement, para. 533; see also Milosevic Joinder Decision, paras 3-5.
531 Kordic and Cerkez Appeal Judgement, paras 220-221; see also Celebici Appeal Judgement, para . 274.
532 Celebici Appeal Judgement, para. 273.
533 Celebici Appeal Judgement, para. 275; Kordic and Cerkez Appeal Judgement, paras 220-221.
534 Confidential Decision of 9 October 2002; Decision on Admission of Rebuttal Exhibits (Confidential).
535 The Appeals Chamber notes that the Decision on Admission of Rebuttal Exhibits (Confidential), in which the Rado s Diary was finally admitted, did not provide any factual basis for the admissibility of the Diary. However, in its previous Confidential Decision of 9 October 2002, the Trial Chamber had stated that Exhibit PP 928c, the complete B/C/S version of the Diary which was subsequently admitted in the 23 October 2002 Decision, “may be introduced” as a rebuttal exhibit because it related to issues that previously authorised rebuttal witnesses were to testify upon, namely “the events related to Sovici and Doljani” and “the Rados Diary”: Confidential Decision of 9 October 2002, p. 3. See also Decision on Rebuttal Witnesses (Confidential), p. 3; Prosecution Filing on Rebuttal Case (Confidential), paras 3(a), 3(b). The Appeals Chamber further notes in this regard that the reference in the Trial Chamber’s decision to “the Rados Diary”as one of the issues that rebuttal witnesses were to testify upon was, for obvious reasons, not a valid basis for admitting the Diary as evidence in rebuttal.
536 Indictment, paras 9, 25, 46, 53, 55, 56.
537 Celebici Appeal Judgement, para. 275.
538 See Celebici Appeal Judgement, para. 533.
539 Prosecution Rule 65 ter Exhibit’s List (Under Seal), item 20.
540 On 7 December 2000, the Prosecution submitted that it had disclosed the Rados Diary to Naletilic, to which submission he did not object: T. 394. When the Rados Diary was put to Defence Witness NE during cross-examination, Naletilic objected that he had only received a printed version of it: T. 11844. In relation to the testimony of Defence Witness NL, the Prosecution stated that the typed out B/C/S version of the Rados Diary was disclosed to Naletilic in September 2000: T. 12726. During the Appeals Hearing, the Prosecution stated, without objection from Naletilic, that it had disclosed the Diary to him on 18 September 2000: Appeals Hearing, T. 148. The Appeals Chamber considers that it is not in dispute that a typed out version in B/C/S of the Rados Diary was disclosed by the Prosecution to Naletilic in September 2000.
541 T. 395 (Status Conference of 7 December 2000).
542 Witness NE, T. 11844 (private session); Witness NL, T. 12705, T. 12710-12711.
543 T. 12730.
544 Decision on Admission of Rebuttal Exhibits (Confidential), p. 2; see also T. 16224.
545 T. 11844 (private session); T . 12731; T. 16224; Decision on Witnesses NE and NH Exhibits, p. 4. Naletilic also filed his objections in written form: see Prosecutor v. Mladen Naletilic, a.k .a. “Tuta”, and Vinko Martinovic, a.k.a. “Stela”, Case No. IT-98-34-T, Accused Naletilic’s Submission, Objection and Motion Concerning the Purported Rados Diary, 10 October 2002; Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a. “Stela”, Case No. IT-98-34-T, Accused Naletilic’s Submission Concerning Documents Tendered by the Prosecution Through Witnesses Prelec and Idrizovic, 17 October 2002.
546 T. 12728. See also Decision on Witnesses NE and NH Exhibits, p. 4, where the Trial Chamber stated that it “reserves its decision (on admission( with regard to Exhibits P 928 and P 928/1”.
547 Witness NE, T. 11856-11858 (private session); Witness NW, T. 14997-14998 (private session). In relation to Witness NW, Naletilic himself put parts of the Rados Diary to the witness in re-examination : Witness NW, T. 14997-14998 (private session). The Appeals Chamber also notes in this context that the Prosecution moved for the admission of a hand-written version of the Rados Diary in relation to Defence Witness NE: Prosecution Submission of Witness NE Exhibits (Confidential).
548 Witness Apolonia Bos, T. 16230 -16243.
549 Naletilic initially requested to call four witnesses in rejoinder, inter alia, Witnesses NX and X, who, he stated, would give evidence on “the events in Sovici and Doljani”: Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a. “Stela”, Case No. IT-98-34-T, Accused Naletilic’s Submission Concerning Rejoinder, 23 September 2002 (Confidential). The Trial Chamber allowed Naletilic to call one of these witnesses in rejoinder and further allowed him, should he choose to call Witness X, to “file a request for another witness to be called in rejoinder regarding the Rados Diary ”: Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a . “Stela”, Case No. IT-98-34-T, Decision on Accused Naletilic’s Submission Concerning Rejoinder, 27 September 2002 (Confidential), p. 3. Naletilic chose to call Witness NX and specified that the witness would give evidence concerning the following issues in relation to Sovici: (1) Naletilic’s alleged presence there at the relevant time ; (2) the alleged capture and mistreatment of members of the ABiH; (3) the destruction of Muslim houses; and (4) the HVO commander in Sovici: Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a. “Stela”, Case No. IT-98-34-T, Accused Naletilic’s Filing Concerning Rejoinder Witnesses, 7 October 2002 (Confidential ). Naletilic also requested the evidence of Witness X concerning “the fate” of the Rados Diary to be admitted as evidence in rejoinder: Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a. “Stela”, Case No. IT-98-34-T, Accused Naletilic’s Request for Additional Witness in Rejoinder, 7 October 2002 (Confidential), p. 2. The Trial Chamber granted Naletilic’s requests, but ordered that the testimony of Witness X should be limited to “the alleged presence of the Accused Naletilic in Sovici (at the relevant time( and the authenticity of the Rado s Diary”: Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a. “Stela”, Case No. IT-98-34-T, Decision on Accused Naletilic’s Request for Additional Witness in Rejoinder, 9 October 2002 (Confidential), p. 2. Naletilic subsequently withdrew his application to bring Witness X because the witness could not appear before a date which, in Naletilic’s submission, would have been too late in view of his “other obligation (…( in terms of the closing brief and the closing argument”: T. 16448 (private session).
550 Witness NX, T. 16482-16483.
551 Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a. “Stela”, Case No. IT-98-34-T, Final Brief of the Accused Mladen Naletilic a.k.a Tuta, 4 November 2002 (“Naletilic Final Trial Brief”), pp. 19 et seq. See in particular, ibid., pp . 35-36; T. 16854.
552 Naletilic Notice of Appeal, p . 5. See also Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a. “Stela”, Case No. IT-98-34-PT, Decision on Prosecution Motion for Admission of Transcripts and Exhibits Tendered During the Testimony of Certain Blaskic and Kordic Witnesses, 27 November 2000; Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a. “Stela”, Case No. IT-98-34-PT, Decision Regarding Prosecutor’s Notice of Intent To Offer Transcripts Under 92 bis (D), 9 July 2001.
553 Naletilic Revised Appeal Brief, para. 139.
554 Naletilic Reply Brief, para. 41.
555 See Trial Judgement, paras 181-202, 238-241. Moreover, with respect to the international armed conflict element, the Trial Chamber stated:

?wghile it is clear from the evidence that HV troops were directly involved in the conflict in and around Mostar, this is not the case as far as the HVO attacks on Sovici/Doljani and Rastani are concerned. This finding does not have the effect that the Geneva Conventions were not applicable in Sovici/Doljani and Rastani. There is no requirement to prove that HV troops were present in every single area where crimes were allegedly committed. On the contrary, the conflict between the ABiH and the HVO must be looked upon as a whole and, if it is found to be international in character through the participation of HV troops, then Article 2 of the Statute will apply to the entire territory of the conflict.

Ibid., at para. 194 (footnotes omitted). Naletilic has not disputed the legal validity of this holding, which undercuts the impact of his argument that the transcripts from other trials referred to the conflict in other regions. Because the Trial Chamber’s findings regarding the existence of an international armed conflict did not depend on the specific facts surrounding the conflict in the immediate area where the crimes took place, Naletilic has not demonstrated that he was materially prejudiced by being denied the opportunity to cross-examine witnesses concerning events in that area.
556 Naletilic Notice of Appeal, p . 6; Naletilic Revised Appeal Brief, paras 147-157.
557 The Trial Chamber based its findings on Witness Safet Idrizovic, Ex. PP 325 (Confidential), Ex. PP 928 and Witness Željko Glasnovic. See Trial Judgement, fns 57-59.
558 The Trial Chamber based its findings on Ex. PP 928, Ex. PP 299.1, Ex. PP 301.1 and Ex. PP 424.1. See Trial Judgement, fns 378-385.
559 Naletilic Revised Appeal Brief, para. 149.
560 Kordic and Cerkez Appeal Judgement, para. 19.
561 Naletilic Revised Appeal Brief, para. 150.
562 Naletilic Revised Appeal Brief, para. 153.
563 Naletilic Revised Appeal Brief, para. 155. Furthermore, Naletilic reiterates his arguments that the author of the Rados Diary was not available to be cross-examined on the extent of his military knowledge, that many of the events described are based on hearsay, and that there are a number of incorrect facts “which are in direct opposition with other ?egxhibits, which are addressed elsewhere in ?the Naletilic Revised Appealg Brief”: Naletilic Revised Appeal Brief, paras 151-153. These arguments are identical to those in support of his sixth ground of appeal in relation to Exhibit PP 928, and have already been dealt with in their totality under Naletilic’s first ground of appeal.
564 Ex. PP 928, p. 65. According to Naletilic, the relevant part of the Rados Diary reads: “?…g up there is everything ready, active and happy ?…g they are ready to do a job within two days, so we can drink coffee in Jablanica tomorrow ?…g”: Naletilic Revised Appeal Brief, para. 150 .
565 Trial Judgement, para. 132, fn . 380.
566 Trial Judgement, para. 30.
567 Trial Judgement, para. 132.
568 Trial Judgement, para. 30, fn . 57 (citing, inter alia, page 84 of Ex. PP 928 which specifically mentions operations in Sovici and Doljani: “I used to think what our men did at Doljani and Sovici was a great crime”).
569 Naletilic Revised Appeal Brief, paras 154, 157.
570 See Trial Judgement, para . 30, fn. 57.
571 Naletilic Revised Appeal Brief, para. 154.
572 Naletilic Revised Appeal Brief, para. 157.
573 The Trial Chamber referred to Ex. PP 325 (Confidential), “report from an international observer dated on 21 April 1993, stating that the HVO offensive launched against Slatina and Doljani aims to push on through to Jablanica”: Trial Judgement, fn. 57 (emphasis added).
574 For its finding in para. 30 of the Trial Judgement, the Trial Chamber relied upon Witness Safet Idrizovic, T. 16327 and Ex. PP 325 (Confidential) and Ex. PP 928. Ex. PP 928 states at p. 84: “Tuta and his men came earlier than ever before. He immediately sat down and worked out a plan. He said that he was going to see it through to the end this time, but thoroughly and safely ?…g This time it seems that the goal will be achieved and that they will reach Zlato and the entry into Jablanica”.
575 Naletilic Revised Appeal Brief, para. 156.
576 Naletilic Revised Appeal Brief, para. 4. The Appeals Chamber will not consider Naletilic’s arguments concerning the testimony of Witnesses NI, NL, NM, NO, NK, NT and NU because they were raised for the first time in the Naletilic Reply Brief (Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a. “Stela”, Case No. IT-98-34-A, Mladen Naletilic’s Reply to the Prosecution’s Response to Naletilic’s Appeal Brief, 17 November 2003 (Confidential) (“Confidential Naletilic Reply Brief”); Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a. “Stela”, Case No. IT-98-34-A, Mladen Naletilic’s Reply to the Prosecution’s Response to Naletilic’s Appeal Brief – Redacted, 10 October 2005 (“Naletilic Reply Brief”)) and, unlike his submissions with regard to Witness NR and Željko Glasnovic, do not respond directly to anything in the Prosecution Response Brief to Naletilic Revised Appeal Brief, para. 4.
577 Naletilic Revised Appeal Brief, para. 156.
578 Trial Judgement, para. 132.
579 Naletilic Notice of Appeal, p . 6; Naletilic Revised Appeal Brief, paras 158-159.
580 Naletilic Notice of Appeal, p . 7; Naletilic’s Revised Appeal Brief, paras 170-173.
581 Trial Judgement, para. 40 (footnotes omitted).
582 Trial Judgement, para. 42 (footnotes omitted).
583 Naletilic Revised Appeal Brief, para. 170 (citing Trial Judgement, para. 40).
584 Naletilic Revised Appeal Brief, para. 171 (citing Trial Judgement, para. 42).
585 Trial Judgement, para. 40.
586 Trial Judgement, para. 40.
587 Naletilic Notice of Appeal, p . 6. Naletilic Revised Appeal Brief, para. 161 (citing Trial Judgement, paras 86, 90, 91, 93, 94, 114, 169; ibid., fns 223, 237).
588 Paragraph 91 of the Trial Judgement refers to the testimony of “?Witnessg Ralf Mrachacz about two orders, given by “ Tuta” in front of the units, regarding military discipline. According to these orders, members of the KB, who committed a criminal act against civilians would be punished and foreigners who deserted and went to the other side had to be shot.” It also refers to the fact that the same witness “also stated that in military operations they were directly subordinate to Mladen Naletilic. In his absence, “Cikota” and “Lija” would give orders”.
589 Paragraph 169 of the Trial Judgement refers to a “Central Military Prison Report, dated 21 September 1993 and signed by the warden of the (Ljubuski( prison Stanko Božic, ?according to whichg 24 detainees were released on 20 and 21 September 1993 on foot of (sic) an order from Mladen Naletilic, who needed them because of a lack of manpower at the frontline .” The same paragraph also refers to the following corroborating evidence: “(a( letter of the Head of the Military Police Crime Department – Mostar Centre addressed on 29 September 1993 to the Head of the Defence Departments Bruno Stojic” noting inter alia that “the detainees were handed over the week before, because of Mladen Naletilic’s order and that they all, allegedly, went off to take part in the action to liberate Rastani.”
590 Naletilic Revised Appeal Brief, para. 162.
591 Naletilic Revised Appeal Brief, para. 163 (citing Trial Judgement, paras 367, 368, 378, 393, 446). On 2 September 2005, Naletilic sought leave to submit a pre-submission brief on torture to assist the Appeals Chamber in considering his 17th ground of appeal. The Appeals Chamber denied leave on 13 October 2005 on the basis that the pre-submission brief did not relate or supplement the error alleged under his 17th ground in the Naletilic Notice of Appeal and the Naletilic Revised Appeal Brief, but rather raised a whole new ground of appeal which was outside the Naletilic Notice of Appeal, and that good cause did not exist for amending the latter. See Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a. “Stela”, Case No. IT-98-34-A, Decision on Mladen Naletilic’s Motion for Leave to File Pre-Submission Brief, 13 October 2005 (“Decision on Naletilic’s Motion for Leave to File Pre-Submission Brief on Torture”), pp. 2 et seq.
592 Naletilic Revised Appeal Brief, para. 163.
593 Appeals Hearing, T. 100-101.
594 Trial Judgement, paras 379, 394 .
595 Trial Judgement, para. 353.
596 Trial Judgement, para. 367.
597 Trial Judgement, para. 367.
598 Trial Judgement, para. 367.
599 Trial Judgement, para. 367.
600 Trial Judgement, para. 367.
601 Trial Judgement, para. 368.
602 Trial Judgement, para. 368.
603 Trial Judgement, para. 368.
604 Trial Judgement, para. 445.
605 Trial Judgement, para. 446.
606 Trial Judgement, para. 446.
607 Trial Judgement, para. 446 (footnotes omitted).
608 Trial Judgement, para. 447.
609 Trial Judgement, para. 447.
610 Trial Judgement, para. 447.
611 Trial Judgement, para. 376. The incident in question is that in paragraph 48 of the Indictment, where Witness AA is referred to as “Witness ‘M’”.
612 Trial Judgement, paras 377-378 .
613 Trial Judgement, para. 378.
614 Trial Judgement, para. 379.
615 Trial Judgement, para. 379.
616 This incident was charged under para. 48 of the Indictment.
617 Trial Judgement, para. 393.
618 Trial Judgement, para. 393 (footnotes omitted).
619 Trial Judgement, para. 394.
620 Trial Judgement, para. 394.
621 Trial Judgement, para. 394.
622 Kunarac et al. Appeal Judgement, para. 149.
623 See, e.g., Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Article I(1).
624 Naletilic Notice of Appeal, p . 7.
625 Naletilic Revised Appeal Brief, para. 179.
626 Naletilic Revised Appeal Brief, paras 178, 182, 185, 186, 189.
627 Naletilic Revised Appeal Brief, para. 190.
628 Naletilic Revised Appeal Brief, para. 177.
629 Naletilic Revised Appeal Brief, para. 179.
630 Naletilic Revised Appeal Brief, paras 180, 192, 194.
631 Naletilic Revised Appeal Brief, para. 193. Naletilic’s additional arguments concerning the pleading of mens rea in the Indictment are considered elsewhere in this Judgement.
632 Prosecution Response to Naletilic Revised Appeal Brief, para. 2.42, fn. 74 (citing Trial Judgement, para. 351).
633 Appeals Hearing, T. 130. The Prosecution alleges that this happened on 20 April 1993, which was “the very next day” after the beating of Witness Y in the bus. Contrary to this submission, however, the Trial Chamber found that the transport of Witness Y from Sovici to Doljani during which this witness was beaten took place on 18 April 1993: Trial Judgement, para. 350.
634 Prosecution Response to Naletilic Revised Appeal Brief, para. 2.43, fn. 75.
635 Trial Judgement, paras 453, 682 .
636 Confidential Decision on Prosecution Motions for Additional Evidence and for Protective Measures, p. 4; Prosecution Rule 115 Motion (Confidential).
637 Trial Judgement, para. 436.
638 Naletilic Revised Appeal Brief, paras 188, 189.
639 Prosecution Response to Naletilic Revised Appeal Brief, para. 2.46 (citing Trial Judgement, para. 433).
640 Prosecution Response to Naletilic Revised Appeal Brief, para. 2.46 (citing Trial Judgement, para. 434).
641 The Trial Chamber refers to the testimony of Witnesses Salko Osmic, Y and UU.
642 Naletilic Revised Appeal Brief, para. 179.
643 Naletilic Revised Appeal Brief, para. 190.
644 Naletilic Revised Appeal Brief, paras 178, 182, 185, 186, 189-190.
645 Prosecution Response to Naletilic Revised Appeal Brief, para. 2.38.
646 Naletilic Revised Appeal Brief, para. 190; Naletilic Reply Brief, para. 8.
647 See Trial Judgement, paras 435, 445-447, 681-682.
648 Trial Judgement, paras 453, 682 .
649 Naletilic Notice of Appeal, p . 7; Naletilic Revised Appeal Brief, para. 195. See also Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a. “Stela”, Case No. IT-98-34-A, Mladen Naletilic’s Consolidated Motion to Present Additional Evidence Pursuant to Rule 115, Incorporating his Previously-filed Motion and Supplement, 8 September 2003 (Confidential) (“Naletilic Consolidated Rule 115 Motion”).
650 Trial Judgement, paras 91-92, 94, 116.
651 Trial Judgement, para. 100.
652 Trial Judgement, paras 100-103 ; see ibid., fn. 281.
653 Trial Judgement, para. 143 (footnotes omitted).
654 Trial Judgement, para. 147.
655 Trial Judgement, para. 652, fn . 1618 (citing Trial Judgement, para. 102); see also ibid., fn. 1549 .
656 Naletilic Notice of Appeal, pp . 7-8; Naletilic Revised Appeal Brief, paras 196-197. See also Trial Judgement, paras 404, 412.
657 Naletilic Revised Appeal Brief, para. 196.
658 Naletilic Revised Appeal Brief, para. 197.
659 Naletilic Revised Appeal Brief, para. 197.
660 Naletilic Revised Appeal Brief, para. 197.
661 Trial Judgement, para. 396.
662 Trial Judgement, para. 396.
663 Trial Judgement, para. 396.
664 The Appeals Chamber notes that, in para. 407 of the Trial Judgement, the Trial Chamber rejected the Defence evidence that prisoners were not mistreated at the Tobacco station “as lacking credibility ”.
665 See Vasiljevic Appeal Judgement, para. 12; Kunarac et al. Appeal Judgement, para. 43; Kordic and Cerkez Appeal Judgement, para. 22.
666 Trial Judgement, para. 333.
667 Naletilic Revised Appeal Brief, para. 198. See also Naletilic Notice of Appeal, p. 8.
668 Naletilic Revised Appeal Brief, para. 198.
669 Naletilic Revised Appeal Brief, para. 198.
670 Naletilic Revised Appeal Brief, para. 198.
671 Appeals Hearing, T. 117.
672 Prosecution Response to Naletilic Revised Appeal Brief, para. 7.4.
673 Prosecution Response to Naletilic Revised Appeal Brief, para. 7.4.
674 Trial Judgement, paras 320, 325 .
675 Trial Judgement, paras 322, 325 .
676 Trial Judgement, para. 326.
677 Trial Judgement, fn. 879.
678 Trial Judgement, para. 326.
679 Trial Judgement, para. 326.
680 Trial Judgement, para. 326. See also Trial Judgement, para. 94.
681 Witness BB, T. 4268-4269: “(a (nd on subsequent days, we stepped -- we would step off the bus 300 metres before the house, and the guards, who were members of the Convicts’ Battalion and those who guarded us were home guards, they told us that that was Tuta's house”.
682 See e.g. Trial Judgement, paras 320, 323, 324.
683 Trial Judgement, fn. 864.
684 Trial Judgement, para. 320 mentions the proximity of Naletilic’s house. In para. 322, however, the Trial Chamber stated that as a result of contradicting evidence, it could not infer that the digging of the trench was for a private purpose; in any event, had the trench been dug in order to supply Naletilic’s house with water, the Trial Chamber would have reached the same finding: see Trial Judgement, para. 322, fn. 872.
685 Naletilic Revised Appeal Brief, para. 199; Naletilic Reply Brief, para. 47.
686 Naletilic Revised Appeal Brief, para. 199.
687 Naletilic Revised Appeal Brief, para. 199.
688 Witness NH, T. 11994: “I know the office that was in charge of that, the Defence Department, came by the information that the military police had brought these people for some interrogation, for some interviews, and that these people were to be placed in some appropriate accommodation . My office, the Defence Department, did manage to find some rooms, very -- in the same building where the Defence Department was.(…( That was in the town, in Listica,(…( where once upon a time there was a -- the tobacco station”. The Appeals Chamber notes that the Trial Judgement did not refer to this part of the evidence given by Witness NH: fns 868 and 875 refer to Witness NH, T. 11995-11996.
689 Trial Judgement, para. 326 (emphasis added).
690 Witness NH, T. 11995: “And the only building which was used at the time was this house, this building here. And this building housed the 1st, the 2nd, and the 3rd Battalions, the civilian protection office and this is where the Convicts’ Battalion also had its headquarters”.
691 Naletilic Notice of Appeal, p . 8; see Trial Judgement, paras 570-571.
692 Naletilic Notice of Appeal, p .7; Naletilic Revised Appeal Brief, para. 169.
693 Naletilic Revised Appeal Brief, para. 203.
694 Naletilic Revised Appeal Brief, para. 203.
695 Naletilic Revised Appeal Brief, para. 204.
696 Naletilic Revised Appeal Brief, para. 204.
697 Naletilic Revised Appeal Brief, para. 205.
698 Naletilic Revised Appeal Brief, para. 206.
699 Naletilic Revised Appeal Brief, para. 206.
700 Trial Judgement, para. 82.
701 Trial Judgement, para. 84.
702 Trial Judgement, para. 132.
703 Trial Judgement, para. 132.
704 Trial Judgement, para. 132.
705 Trial Judgement, fn. 385.
706 Naletilic Revised Appeal Brief, para. 209 (citing Defence Witnesses NJ, NE and Željko Glasnovic, and Exhibit DD1 /336).
707 Naletilic Revised Appeal Brief, para. 209.
708 Naletilic Revised Appeal Brief, para. 209.
709 Trial Judgement, fn. 1369.
710 Trial Judgement, para. 529.
711 Trial Judgement, para. 529 (footnotes omitted).
712 Naletilic Revised Appeal Brief, paras 209-210.
713 See e.g. T. 12936-12939 (where Naletilic was raising concerns about the authenticity of Ex. PP 333); T. 16489-16490 (where Naletilic was using Ex. D1/439).
714 Naletilic Revised Appeal Brief, para. 211.
715 Naletilic Revised Appeal Brief, para. 211.
716 Naletilic Revised Appeal Brief, para. 211.
717 Trial Judgement, para. 531.
718 See Trial Judgement, para . 529, fns 1373, 1374.
719 Trial Judgement, para. 531, fn . 1379 (citing Trial Judgement, paras 89-94, 117-132). See Trial Judgement, para. 132.
720 Naletilic Revised Appeal Brief, para. 215.
721 Naletilic Revised Appeal Brief, para. 215.
722 Trial Judgement, para. 524.
723 Naletilic Revised Appeal Brief, para. 216.
724 Naletilic Revised Appeal Brief, para. 216.
725 Naletilic Revised Appeal Brief, para. 216 (citing also T. 14966-14967 (private session)).
726 Trial Judgement, para. 127.
727 The Appeals Chamber observes that Exhibit PP 362 was not used by the Trial Chamber in the Trial Judgement, but it can be found on the Trial Record.
728 Naletilic Revised Appeal Brief, para. 219.
729 Naletilic Revised Appeal Brief, para. 219 (citing Trial Judgement, para. 530).
730 Naletilic Revised Appeal Brief, para. 219.
731 Naletilic Revised Appeal Brief, para. 219.
732 Trial Judgement, para. 530.
733 Naletilic Revised Appeal Brief, para. 218.
734 Naletilic Revised Appeal Brief, para. 218.
735 Naletilic Revised Appeal Brief, para. 218 (citing Witnesses Ivan Bagaric, T. 12372-12376; NN, T. 12896-12899; Safet Idrizovic). The Prosecution submits that Ex. PP 360 does not exist on the record: Prosecution Response to Naletilic Revised Appeal Brief, para. 7.34. The Prosecution also states that it believes Naletilic is referring to Ex. DD 360, which in any event does not exist in the Trial Record either.
736 Appeals Hearing, T. 168.
737 Ex. DD 1/426 is a note to the Commander of the Herceg Stjepan Brigade with the dates 2 May 1993 and 4 May 1993 to “(r(elease all civilian prisoners in Doljani and Sovici, keep men of military age”, with the signature block of the Chief of the HVO Main Staff Major General Milivoj Petkovic.
738 Naletilic Revised Appeal Brief, para. 212 (citing Trial Judgement, paras 647, 648, 530).
739 Naletilic Revised Appeal Brief, para. 212.
740 Naletilic Revised Appeal Brief, para. 212.
741 Trial Judgement, para. 530.
742 Trial Judgement, para. 530 (footnotes omitted).
743 Trial Judgement, para. 647.
744 Naletilic Revised Appeal Brief, para. 213.
745 Naletilic Revised Appeal Brief, para. 213.
746 Naletilic Revised Appeal Brief, para. 213.
747 Naletilic Revised Appeal Brief, paras 214, 217, 220, 221. See Naletilic Consolidated Rule 115 Motion (Confidential ).
748 Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a. “Stela”, Case No. IT-98-34-A, Decision on Naletilic’s Consolidated Motion to Present Additional Evidence, 20 October 2004 (“Decision on Naletilic Consolidated Rule 115 Motion”): see paras 55 -57, stating the reasons why the Appeals Chamber denied Naletilic’s request for admission of Exhibit I (the minutes of the meetings of the 3rd Mijat Tomic Battalion ).
749 Naletilic Revised Appeal Brief, paras 222, 223 (citing Trial Judgement, para. 532).
750 Naletilic Revised Appeal Brief, para. 223.
751 Naletilic Revised Appeal Brief, para. 223.
752 Naletilic Revised Appeal Brief, para. 223.
753 Blaskic Appeal Judgement, para. 91; see also Kordic and Cerkez Appeal Judgement, para. 34.
754 Trial Judgement, para. 531.
755 Trial Judgement, para. 532.
756 Trial Judgement, para. 532.
757 Naletilic Notice of Appeal, p . 7; Naletilic Revised Appeal Brief, para. 169.
758 Naletilic Notice of Appeal, p . 8.
759 Naletilic Revised Appeal Brief, para. 225 (citing his 12th ground of appeal).
760 See supra, paras 67-70 .
761 Trial Judgement, para. 557.
762 Naletilic Revised Appeal Brief, para. 227.
763 Kordic and Cerkez Appeal Judgement, para. 281.
764 Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-AR73, Decision on Prosecutor’s Appeal on Admissibility of Evidence, 16 February 1999 (“Aleksovski Decision on Admissibility of Evidence ”), para. 15.
765 Trial Judgement, fn. 309 (citing Witness S, T.2546-2548).
766 Trial Judgement, paras 151-159, 557.
767 Trial Judgement, para. 557.
768 Trial Judgement, para. 558 (citing Ex. PP 455.1, Ex. PP 456.1, Ex. PP 456.2).
769 Naletilic Revised Appeal Brief, para. 229.
770 Naletilic Revised Appeal Brief, para. 232.
771 Naletilic Revised Appeal Brief, paras 229-230.
772 Naletilic Revised Appeal Brief, para. 231 (citing Witness NO, T. 12951, 12953-12954 (private session), 12961).
773 Trial Judgement, fn. 1421 (citing Ex. PP 455.1, Ex. PP 456.1, Ex. PP 456.2).
774 Ex. PP 456.1; Ex. PP 456.2.
775 Trial Judgement, para. 566 (footnotes omitted).
776 Trial Judgement, para. 562, fn . 1430 (citing Ex. PP 558, Ex. PP 707, Ex. PP 556).
777 Trial Judgement, para. 562, fn . 1429 (citing Ex. PP 620.1).
778 Trial Judgement, para. 155.
779 Trial Judgement, paras 156-158 .
780 Trial Judgement, para. 159.
781 Trial Judgement, para. 153 (citing sections of Naletilic Final Trial Brief).
782 See Trial Judgement, para . 133, fn. 386; ibid., para. 137, fn. 402; ibid., para. 154, fns 440 -441.
783 Naletilic Notice of Appeal, p . 8; Naletilic’s Revised Appeal Brief, paras 233-237. See also Trial Judgement, paras 585, 596-597. The Appeals Chamber notes that the title of Naletilic’s ground of appeal XXVII alleges that the Trial Chamber erred in finding him guilty as a superior for wanton destruction in Doljani pursuant to Article 7(3) of the Statute . However, Naletilic only makes arguments under this ground with regard to the Trial Chamber’s finding of his guilt pursuant to Article 7(1) of the Statute after he correctly observes that the Trial Chamber ultimately held him individually responsible pursuant to Article 7(1) and not Article 7(3) of the Statute. See Naletilic Revised Appeal Brief, para. 233; Trial Judgement, para. 597.
784 Naletilic Revised Appeal Brief, para. 236.
785 Naletilic Revised Appeal Brief, para. 236 (citing Ex. PP 928, pp. 78-79; Witness Falk Simang, T. 3809-3810, 3893 -3894; Trial Judgement, fns 1456, 1462-1463).
786 Naletilic Revised Appeal Brief, para. 236 (citing Trial Judgement, fns 1456, 1462-1463).
787 Naletilic Revised Appeal Brief, para. 236 (citing Trial Judgement, fns 1456, 1470).
788 Naletilic Revised Appeal Brief, para. 236.
789 Trial Judgement, paras 596-597 (footnotes omitted).
790 Witness Falk Simang, T. 3794- 3799.
791 Witness Falk Simang, T. 3799- 3813.
792 Ex. PP 928, pp. 76-77.
793 Ex. PP 928, p. 78.
794 Trial Judgement, para. 631.
795 Naletilic Revised Appeal Brief, para. 239.
796 Naletilic Revised Appeal Brief, para. 239 (emphasis added).
797 Naletilic Notice of Appeal, p . 7.
798 Naletilic Revised Appeal Brief, para. 164.
799 Naletilic Revised Appeal Brief, para. 165.
800 Naletilic Revised Appeal Brief, para. 166.
801 Naletilic Revised Appeal Brief, para. 167.
802 Naletilic Revised Appeal Brief, paras 165-167.
803 Naletilic Notice of Appeal, p . 9. Although the relevant heading in the Naletilic Notice of Appeal mentions Witness RR, Naletilic does not refer to that witness in his Revised Appeal Brief, and in fact he was not found guilty of mistreating that witness.
804 Naletilic Revised Appeal Brief, para. 241a.
805 Trial Judgement, para. 360, fn . 959. Fn. 156 of the Naletilic Revised Appeal Brief refers to Trial Judgement, fn. 1470. The latter does not show any error, since in it the Trial Chamber is satisfied that Cikota’s death occurred on 20 April 1993, which is not contested: see Trial Judgement, fn. 1470.
806 Trial Judgement, para. 365.
807 Naletilic Revised Appeal Brief, para. 241a.
808 Trial Judgement, para. 364.
809 Trial Judgement, para. 364.
810 Naletilic Revised Appeal Brief, para. 241a.
811 See Trial Judgement, paras 354-355, fn. 946 (citing Witness TT, T. 6643, 6645).
812 See Trial Judgement, Annex II, Procedural Background, para. 24, where the Trial Chamber refers to the files in question as “Missing files” and summarises the related procedure.
813 Naletilic Notice of Appeal, p . 9; Naletilic Revised Appeal Brief, paras 243, 246.
814 Naletilic Revised Appeal Brief, para. 244.
815 Naletilic Revised Appeal Brief, para. 245.
816 Naletilic Revised Appeal Brief, para. 245.
817 Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a. “Stela”, Case No. IT-98-34-T, Naletilic Request for Order for Disclosure by the Prosecution, 8 March 2002, p. 2. Naletilic argued that these files concerned alleged war crimes in the area of Sovici, on or about 17 April 1993, that they were in the possession of the Prosecution and that they were expected to contain exculpatory evidence.
818 Prosecutor v. Mlad