Case No. IT-98-34-A

Before:
Judge Fausto Pocar, Presiding
Judge Mohamed Shahabuddeen
Judge Mehmet Güney
Judge Andrésia Vaz
Judge Wolfgang Schomburg

Registrar:
Mr. Hans Holthuis

Judgement of:
3 May 2006

Counsel for the Prosecutor:

Mr. Norman Farrell
Mr. Peter M. Kremer
Ms. Marie-Ursula Kind
Mr. Xavier Tracol
Mr. Steffen Wirth

Counsel for Naletilic and Martinovic:

Mr. Matthew Hennessy and Mr. Christopher Meek for Mladen Naletilic
Mr. Zelimir Par and Mr. Kurt Kerns for Vinko Martinovic

I. INTRODUCTION
1. The Appeals Chamber of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991 (“International Tribunal”) is seized of three appeals from the judgement rendered by the Trial Chamber on 31 March 2003 in the case Prosecutor v. Mladen Naletilic, a.k.a. “Tuta”, and Vinko Martinovic, a.k.a. “Stela”, Case No. IT-98-34-T (“Trial Judgement”), its English text being authoritative.

2. The events giving rise to this appeal took place during the conflict between the Croatian Defence Council (“HVO”) and the Army of Bosnia and Herzegovina (“ABiH ”) in Mostar and its surrounding municipalities in south-western Bosnia and Herzegovina. Following the break-up of the Socialist Federal Republic of Yugoslavia (“SFRY”), BH Croats and BH Muslims in 1992 fought together under the auspices of the HVO against the Serb-Montenegrin forces.¹ However, after the withdrawal of these forces, tensions between BH Croats and BH Muslims increased. By mid-April 1993, Mostar had become a divided city, and a full-scale conflict had developed between the HVO and ABiH in both central and south-western Bosnia and Herzegovina.² This appeal deals with events occurring in the time period of April 1993 until January 1994 and with crimes related to three attacks by the HVO.³ These attacks are: first, the attack beginning on 17 April 1993 on the villages of Sovici and Doljani, located in the municipality of Jablanica some 50 kilometres north of Mostar; second, the attack on Mostar that began on 9 May 1993; and third, the attack on the village of Rastani, located slightly north of Mostar on the west bank of the Neretva River, beginning on 22 September 1993. The Trial Chamber found that these three attacks resulted in thousands of BH Muslim civilians being forced to leave their homes in Sovici, Doljani and West Mostar. In addition, a large number of both prisoners of war and civilian prisoners were held in detention centres in the area, with some being taken to perform labour in various locations, mainly on the frontline in Mostar.⁴

3. The Appellant Mladen Naletilic, a.k.a. “Tuta” (“Naletilic”), was born in 1946 in Siroki Brijeg, which is 14 kilometres west of Mostar in Bosnia and Herzegovina.⁵ Naletilic founded a military group called the Convicts’ Battalion (“KB”) which fought under his leadership against the Serb-Montenegrin forces in Mostar during the spring of 1992.⁶ After the HVO was restructured at the end of 1992 and the beginning of 1993, the KB became a so-called professional or independent unit put into action for special combat purposes, and as such was under the direct command of the HVO Main Staff.⁷ Attached to the KB were several Anti-Terrorist Group (“ATG”) units.⁸ The Trial Chamber found that Naletilic was the highest-ranking commander of the KB during the period of time relevant to this appeal.⁹

4. On 31 March 2003, the Trial Chamber convicted Naletilic of eight Counts.¹⁰ It acquitted him of nine Counts either because it found the evidence to be insufficient or because the convictions would have been impermissibly cumulative.¹¹ Naletilic was convicted pursuant to Article 7(1) of the Statute of the International Tribunal (“Statute”)¹² of the crime of wanton destruction not justified by military necessity as a violation of the laws or customs of war under Article 3(b) (Count 20).¹³ Naletilic was convicted pursuant to Article 7(3) of unlawful labour as a violation of the laws or customs of war under Article 3 (Count 5)¹⁴ and of plunder of public or private property as a violation of the laws or customs of war under Article 3(e) (Count 21).¹⁵ Naletilic was further convicted of the following crimes: persecutions on political, racial and religious grounds as a crime against humanity under Article 5(h) (Count 1);¹⁶ torture as a crime against humanity under Article 5(f) (Count 9);¹⁷ torture as a grave breach of the Geneva Conventions of 1949 under Article 2(b) (Count 10 );¹⁸ wilfully causing great suffering or serious injury to body or health as a grave breach of the Geneva Conventions of 1949 under Article 2(c) (Count 12);¹⁹ and unlawful transfer of a civilian as a grave breach of the Geneva Conventions of 1949 under Article 2(g) (Count 18).²⁰ For some of the acts underlying the latter crimes Naletilic’s responsibility was established pursuant to Article 7(1) and for others pursuant to Article 7(3).²¹ Naletilic was sentenced to a single term of 20 years of imprisonment.²²

5. The Appellant Vinko Martinovic, a.k.a. “Stela” (“Martinovic”), was born in 1963 in Mostar.²³ When the conflict against the Serb-Montenegrin forces began in Mostar in 1992, Martinovic joined the Croatian Defence Forces (“HOS”) and became a commander.²⁴ At least from mid-May 1993 onward, Martinovic was the commander of a group of soldiers who held positions at a confrontation line in Mostar.²⁵ Martinovic was the commander of the Vinko Skrobo ATG, which the Trial Chamber found was part of the KB.²⁶

6. On 31 March 2003, the Trial Chamber convicted Martinovic of nine Counts.²⁷ It acquitted him of eight Counts either because it found the evidence to be insufficient or because the convictions would have been impermissibly cumulative.²⁸ Martinovic was convicted pursuant to Article 7(1) of the Statute of the following crimes: persecutions on political, racial and religious grounds as a crime against humanity under Article 5(h) (Count 1);²⁹ inhumane acts as a crime against humanity under Article 5(i) (Count 2);³⁰ inhuman treatment as a grave breach of the Geneva Conventions of 1949 under Article 2(b) (Count 3);³¹ wilfully causing great suffering or serious injury to body or health as a grave breach of the Geneva Conventions of 1949 under Article 2(c) (Count 12);³² murder as a crime against humanity under Article 5(a) (Count 13);³³ wilful killing as a grave breach of the Geneva Conventions of 1949 under Article 2(a) (Count 14);³⁴ and unlawful transfer of a civilian as a grave breach of the Geneva Conventions of 1949 under Article 2(g) (Count 18).³⁵ Martinovic was further convicted of unlawful labour as a violation of the laws or customs of war under Article 3 (Count 5),³⁶ and of plunder of public or private property as a violation of the laws or customs of war under Article 3(e) (Count 21).³⁷ For some of the acts underlying the latter crimes Martinovic’s responsibility was established pursuant to Article 7(1) and for others pursuant to Article 7(3). Martinovic was sentenced to a single sentence of 18 years of imprisonment.³⁸

7. Naletilic and Martinovic lodged individual Notices of Appeal on 29 April 2003 and the Prosecution on 2 May 2003.³⁹ Naletilic and Martinovic appeal against each of their convictions and sentences on the basis that the Trial Chamber committed errors of both law and fact.⁴⁰ The Appeals Chamber has identified certain issues that are common to Naletilic’s and Martinovic’s grounds of appeal and has addressed these issues together in the judgement under the headings of: “Errors Alleged by Naletilic and Martinovic Concerning Denial of Due Process of Law”, “Error Alleged by Naletilic and Martinovic Concerning the International Character of the Armed Conflict” and “Appeals From Sentence”. The Prosecution’s appeal alleges three errors of law.⁴¹ Two of these are dealt with together, while the Prosecution’s arguments concerning cumulative convictions are addressed alongside Martinovic’s arguments on this issue.
   II. STANDARD OF REVIEW ON APPEAL

8. Article 25 of the Statute provides for appeals on the ground of an error of law that invalidates the decision or an error of fact that has occasioned a miscarriage of justice.⁴² It also states that the Appeals Chamber may affirm, reverse or revise the decisions taken by the Trial Chamber.

9. The Appeals Chamber has stated that:

   A party alleging that there is an error of law must advance arguments in support of the contention and explain how the error invalidates the decision; but, if the arguments do not support the contention, that party does not automatically lose its point since the Appeals Chamber may step in and, for other reasons, find in favour of the contention that there is an error of law.⁴³

10. If the Appeals Chamber finds that an error of law arises from the application of a wrong legal standard by a Trial Chamber, it is open to the Appeals Chamber to correct the legal error and apply the correct legal standard to the evidence contained in the record to determine whether it is itself convinced beyond reasonable doubt as to the factual finding challenged by the Defence, before affirming that finding on appeal.⁴⁴

11. As to alleged errors of fact, the Appeals Chamber recalls that the responsibility for evaluating the evidence and making findings of fact resides primarily with the Trial Chamber.⁴⁵ Thus, the Appeals Chamber will not lightly overturn findings of fact made by a Trial Chamber.⁴⁶ In assessing an alleged error of fact with respect to a particular ground where no additional evidence has been admitted on appeal, the Appeals Chamber will apply a standard of reasonableness in reviewing the finding, namely, whether the conclusion is one which no reasonable trier of fact could have reached.⁴⁷ Where, as in this case, a factual error is alleged with respect to a particular ground of appeal on the basis of additional evidence proffered during the appellate proceedings, Rule 117 of the Rules of Procedure and Evidence (“Rules”)⁴⁸ provides that the Appeals Chamber shall pronounce judgement “on the basis of the record on appeal together with such additional evidence as has been presented to it.”

12. The Appeals Chamber in Kupreskic established the standard of review when additional evidence has been admitted on appeal, and held:

    The test to be applied by the Appeals Chamber in deciding whether or not to uphold a conviction where additional evidence has been admitted before the Chamber is: has the appellant established that no reasonable tribunal of fact could have reached a conclusion of guilt based upon the evidence before the Trial Chamber together with the additional evidence admitted during the appellate proceedings.⁴⁹

    The standard of review employed by the Appeals Chamber in that context was whether a reasonable trier of fact could have been satisfied beyond reasonable doubt as to the finding in question, a deferential standard. In that situation, the Appeals Chamber in Kupreskic did not determine whether it was satisfied itself, beyond reasonable doubt, as to the conclusion reached, and indeed, it did not need to do so, because the outcome in that situation was that no reasonable trier of fact could have reached a finding of guilt.^49bis

13. The Appeals Chamber reiterates that a party may not merely repeat on appeal arguments that did not succeed at trial, unless that party can demonstrate that rejecting them constituted such error as to warrant the intervention of the Appeals Chamber. Arguments of a party that do not have the potential to cause the impugned decision to be reversed or revised may be immediately dismissed by the Appeals Chamber and need not be considered on the merits.⁵⁰

14. With regard to form, the parties are expected to provide precise references to relevant transcript pages or paragraphs in the judgement to which the challenge is being made, as well as exact references to the parts of the record on appeal invoked in its support.⁵¹ If a party makes submissions that are obscure, contradictory, or vague, or if they suffer from other formal and obvious insufficiencies, the Appeals Chamber will dismiss the submissions as unfounded without providing detailed reasoning.⁵²
    III. ERRORS ALLEGED BY NALETILIC AND MARTINOVIC CONCERNING DENIAL OF DUE PROCESS OF LAW
    A. Alleged vagueness of the Indictment
    1. Introduction

15. As part of his second ground of appeal, Martinovic submits that the Indictment is too vague in that it does not plead the following incidents for which he was found responsible: (1) the turning of a private property into the headquarters of the Vinko Skrobo ATG⁵³ (Count 5); (2) three incidents of beating of prisoners in his area of command⁵⁴ (Counts 11 and 12); (3) unlawful transfer of civilians from the DUM area in Mostar on 13 and 14 June 1993 and from the Centar II area in Mostar on 29 September 1993 ⁵⁵ (Count 18); and (4) incidents of plunder⁵⁶ (Count 21).

16. Naletilic submits under his 12th ground of appeal that the Indictment is too vague in that it does not plead the incidents of unlawful transfer of civilians from the DUM area in Mostar on 13 and 14 June 1993 and from the Centar II area in Mostar on 29 September 1993 (Count 18), for which he was found responsible.⁵⁷ He further submits under his 21st ground of appeal that the Indictment is too vague also with respect to the charges on which he was found responsible for mistreatment in Ljubuski prison (Counts 11 and 12).⁵⁸

17. The Martinovic Notice of Appeal does not mention the allegation of vagueness of the Indictment. As for the Naletilic Notice of Appeal, the 12th ground of appeal includes an explicit challenge to the Indictment whereas the 21st ground of appeal does not.⁵⁹ Because both Naletilic and Martinovic make challenges to the Indictment in their briefs that are not included in their Notices of Appeal, they should have sought leave to amend their Notices of Appeal pursuant to Rule 108 as soon as possible after identifying this new allegation, but both failed to do so. This notwithstanding, the Prosecution itself does not raise an objection to these grounds of appeal in Naletilic’s and Martinovic’s briefs and has responded to them in full.⁶⁰ As a result, the Appeals Chamber turns to consider them.⁶¹

18. At the pre-trial stage, Naletilic and Martinovic filed preliminary motions pursuant to Rule 72(A)(ii) alleging defects in the form of the Initial Indictment.⁶² Martinovic challenged the following paragraphs of the Initial Indictment: 44 (unlawful labour in areas other than the front line, Counts 2 to 8);⁶³ 49 ( cruel treatment and wilfully causing great suffering or serious injury to body or health, Counts 11 and 12);⁶⁴ 54 (forcible transfer, Count 18);⁶⁵ and 57 (destruction and plunder of property, Counts 19 to 22).⁶⁶ Naletilic raised a general objection to the descriptions of the acts alleged under Counts 1 to 22 of the Initial Indictment, arguing that they did not provide a “clear indication of the time of the crime perpetration, the manner, location, consequences, and the form of guilt”, including the particular form of responsibility under Article 7 of the Statute.⁶⁷

19. The Trial Chamber denied Naletilic’s and Martinovic’s preliminary motions on the form of the Initial Indictment in a Decision of 15 February 2000⁶⁸ (“15 February 2000 Decision”) for Martinovic and in a Decision of 11 May 2000⁶⁹ (“11 May 2000 Decision”) for Naletilic. It held, inter alia, that: the discovery material in Naletilic’s and Martinovic’s possession was meant to contain details of specific events that the Prosecution intended to present at trial;⁷⁰ Naletilic and Martinovic did not contend that that material did not provide sufficient particulars to prepare their case;⁷¹ and “the next logical step is that the Defence review those materials”.⁷² Naletilic and Martinovic did not seek leave to appeal these Decisions of the Trial Chamber pursuant to Rule 72(B)(ii).

20. The Prosecution argues that Martinovic did not seek leave to appeal the 15 February 2000 Decision nor has he demonstrated that he maintained the objection before the Trial Chamber that he was unable to prepare his defence in relation to the plunder charges in the Indictment.⁷³ The Prosecution further argues that Martinovic does not appear to have raised at trial that he was unable to prepare his defence with respect to the incident of unlawful transfer on 13 and 14 June 1993, nor does he appear to have raised the issue of lack of notice regarding this particular incident in his Pre-Trial Brief or in his Final Trial Brief.⁷⁴

21. The Appeals Chamber recalls that a party is under the obligation to formally raise before the Trial Chamber, either at the pre-trial stage or during trial, any issues that require resolution.⁷⁵ If a party raises no objection to a particular issue before the Trial Chamber when it could have reasonably done so, in the absence of special circumstances,⁷⁶ the Appeals Chamber will find that the party has waived its right to bring the issue as a valid ground of appeal.⁷⁷

22. All the defects in the Indictment that Martinovic is alleging on appeal were formally raised by him before the Trial Chamber at the pre-trial stage in his preliminary motion objecting to the form of the Initial Indictment.⁷⁸ Although he did not raise again the issue of specificity in his subsequent objection to the first and second Amended Indictments, he was under no obligation to do so, as the Trial Chamber had already heard and rejected his argument and the amendments did not affect the Indictment’s factual allegations.⁷⁹ The Prosecution suggests that, in order to preserve his objections for appeal, Martinovic had to seek leave to appeal the 15 February 2000 Decision and/or continue to sustain these objections at trial. The practice of the International Tribunal on the issue of waiver does not impose such obligations. As Martinovic formally raised his challenges to the form of the Indictment during the pre-trial stage, the Appeals Chamber finds that he has not waived his right to put forth these arguments on appeal. As far as Naletilic is concerned, however, the challenges to the Indictment he has raised on appeal were only generally comprised in his preliminary motion objecting to the form of all Counts.⁸⁰ This notwithstanding, the Prosecution does not seek to argue that Naletilic did not raise this issue until now. In fact, it is apparent from the Trial Chamber’s 11 May 2000 Decision that the Trial Chamber considered that Naletilic had raised the same challenge to the sufficiency of the pleading in the Indictment that Martinovic had.⁸¹ This conclusion is further borne out by the Trial Judgement wherein, under the section entitled “Preliminary motion on the form of the Indictment”, the Trial Chamber recalled that it had “rejected both motions (alleging defects in the form of the Indictment ( and (had( held that the Indictment is not too vague”.⁸² As a result, the Appeals Chamber will proceed on the basis that both Martinovic and Naletilic raised before the Trial Chamber the allegations of defects in the Indictment they are bringing on appeal. For this reason, in the event that the Appeals Chamber agrees with Naletilic and Martinovic that the Indictment was defective, it will be for the Prosecution to discharge the burden of showing that Naletilic ’s and Martinovic’s ability to prepare their defence was not thereby materially impaired.⁸³
    2. Law applicable to indictments

23. In accordance with Article 21(4)(a) of the Statute, an accused has the right “to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him”. It is well established in the case law of the International Tribunal that Articles 18(4) and 21(2), 21(4)(a) and 21 (4)(b) of the Statute require the Prosecution to plead in the indictment all material facts underpinning the charges in the indictment, but not the evidence by which the material facts are to be proven.⁸⁴ Whether an indictment is pleaded with sufficient particularity is depends on whether it sets out the material facts of the Prosecution case with enough detail to inform an accused clearly of the charges against him or her so that the accused may prepare a defence.⁸⁵

24. Whether particular facts are “material” depends on the nature of the Prosecution case. Where the Prosecution alleges that an accused personally committed the criminal acts in question, it must, so far as possible, plead the identity of the victim, the place and approximate date of the alleged criminal acts, and the means by which they were committed “with the greatest precision.”⁸⁶ However, less detail may be acceptable if the “sheer scale of the alleged crimes makes it impracticable to require a high degree of specificity in such matters as the identity of the victims and the dates for the commission of the crimes”.⁸⁷ Where it is alleged that the accused planned, instigated, ordered, or aided and abetted the alleged crimes, the Prosecution is required to identify the “particular acts” or “the particular course of conduct” on the part of the accused which forms the basis for the charges in question.⁸⁸

25. On occasion, material facts are not pleaded with the requisite degree of specificity in an indictment because the necessary information was not in the Prosecution’s possession. In this context, however, the Appeals Chamber emphasises that the Prosecution is expected to know its case before proceeding to trial and may not rely on the weaknesses of its own investigation in order to mould the case against the accused as the trial progresses.⁸⁹ Other defects in an indictment that may arise at a later stage of the proceedings because the evidence turns out differently than expected call for the Trial Chamber to consider whether a fair trial requires an amendment of the indictment, an adjournment, or the exclusion of evidence outside the scope of the indictment.⁹⁰

26. In reaching its judgement, a Trial Chamber can only convict the accused of crimes which are charged in the indictment.⁹¹ If the indictment is found to be defective because it fails to plead material facts or does not plead them with sufficient specificity, the Trial Chamber must consider whether the accused was nevertheless accorded a fair trial.⁹² In some instances, where the accused has received timely, clear and consistent information from the Prosecution detailing the factual basis underpinning the charges against him or her, the defective indictment may be deemed cured and a conviction may be entered.⁹³ Where the failure to give sufficient notice of the legal and factual reasons for the charges against the accused has violated the right to a fair trial, no conviction may result.⁹⁴ When challenges to an indictment are raised on appeal, amendment of an indictment is no longer possible and so the question is whether the error of trying the accused on a defective indictment “invalidat(ed( the decision” and warrants the Appeals Chamber’s intervention.⁹⁵

27. In assessing whether a defective indictment was cured, the issue to be determined is whether the accused was in a reasonable position to understand the charges against him or her.⁹⁶ In making this determination, the Appeals Chamber has in some cases looked at information provided through the Prosecution’s pre-trial brief⁹⁷ or its opening statement.⁹⁸ The Appeals Chamber considers that the list of witnesses the Prosecution intends to call at trial, containing a summary of the facts and the charges in the indictment as to which each witness will testify and including specific references to counts and relevant paragraphs in the indictment,⁹⁹ may in some cases serve to put the accused on notice. However, the mere service of witness statements or of potential exhibits by the Prosecution pursuant to the disclosure requirements does not suffice to inform an accused of material facts that the Prosecution intends to prove at trial.¹⁰⁰ Finally, an accused’s submissions at trial, for example the motion for judgement of acquittal, final trial brief or closing arguments, may in some instances assist in assessing to what extent the accused was put on notice of the Prosecution’s case and was able to respond to the Prosecution’s allegations.¹⁰¹
    3. Alleged defects in the Indictment

28. The Appeals Chamber will now deal with Naletilic’s and Martinovic’s arguments alleging defects in the Indictment. Whether the Trial Chamber erred in failing to find the Indictment defective will be analysed only in relation to the criminal conduct for which Naletilic and Martinovic were found responsible.¹⁰²

    (a) Failure to sufficiently plead the incident of turning a private property into the headquarters of the Vinko Skrobo ATG

29. Under Count 5, the Trial Chamber found Martinovic responsible for unlawful labour pursuant to Articles 3 and 7(1) of the Statute for ordering prisoners to turn a private property into the headquarters of the Vinko Skrobo ATG around 7 July 1993.¹⁰³ Martinovic challenges this finding because the incident was not described in the Indictment.¹⁰⁴ The Prosecution responds that this omission was cured by its Chart of Witnesses and List of Facts.¹⁰⁵

30. The Trial Chamber’s findings in paragraph 313 of the Trial Judgement make clear that it found Martinovic personally responsible for this incident. Thus, the Prosecution was required to set forth the details of the incident with precision, so far as possible, in the Indictment. In addition, because the crime in question consisted of forcing prisoners to perform labour that was connected to war operations,¹⁰⁶ the military character or purpose of the alleged incidents of forced labour also needed to be pleaded as a material fact. Neither requirement was met here.

31. The relevant part of the Indictment reads as follows:

    [Counts 2 to 8: Unlawful Labour and Human Shields as Inhuman Treatment and Wilful Killing]

    44. (From about April or May 1993 through at least January 1994(,¹⁰⁷ MLADEN NALETILIC, VINKO MARTINOVIC and their subordinates also forced Bosnian Muslim detainees to perform labour in locations other than the front lines. The Bosnian Muslim detainees were forced, inter alia, to engage and participate in the following works: building, maintenance and reparation works in private properties of the members and commanders of the KB; digging trenches, building defences in the positions of the KB or other HV and HVO forces; and assisting the KB members in the process of looting houses and properties of Bosnian Muslims.¹⁰⁸

32. The incident of turning a private property into the headquarters of the Vinko Skrobo ATG is not as such explicitly mentioned in the Indictment. The Indictment charges Martinovic with forcing prisoners to perform some labour with a military character or purpose, for example “digging trenches” and “building defences”, but does not include the allegation that prisoners were also forced to empty apartments of furniture for that purpose. Furthermore, the allegation in the Indictment that prisoners were forced to “assist in the process of looting houses and properties of Bosnian Muslims” does not sufficiently allege this specific incident (stating only that unlawful labour occurred at “locations other than the front line” somewhere within a nine-month range), nor its military purpose.¹⁰⁹ The Indictment was thus defective, and the Trial Chamber erred in failing to so find.

33. As to whether the defects were cured, the information in the Prosecution Pre -Trial Brief, filed on 11 October 2000, as well as in its Chart of Witnesses and List of Facts, filed on 18 July 2000, was provided to Naletilic and Martinovic in a timely manner, as these documents were filed eleven and fourteen months prior to the commencement of trial, respectively. With regard to unlawful labour in locations other than the frontline, the Prosecution Pre-Trial Brief states that “prisoners were forced to work at the premises of Martinovic” and that “detainees were forced by Martinovic to loot the homes of Bosnian Muslims who had been evicted across the front-line into East Mostar”.¹¹⁰ The Prosecution Chart of Witnesses and List of Facts provides that Martinovic forced Muslim detainees to perform “work such as construction, maintenance, repairs on the front line or at other locations either in support of the military effort of the Croatian forces or for their personal gain”.¹¹¹

34. The Appeals Chamber finds that these passages could not have cured the defect in the Indictment, because they suffer from the same insufficiencies as did the Indictment itself: a failure to specify the place, time, and military purpose of the particular incident in question. No additional information is contained in the Prosecution Opening Statement.

35. Thus, Martinovic was not put on notice of the incident of turning a private property into the headquarters of the Vinko Skrobo ATG. The Appeals Chamber finds that the trial against Martinovic was thereby rendered unfair, and as a result he could not have been found responsible for this incident.

    (b) Failure to sufficiently plead three incidents of prisoners’ beatings in Martinovic’s area of command

36. The Trial Chamber found that Martinovic participated in frequent beatings of prisoners as established for three incidents: one in July or August 1993 involving several prisoners; another with a prisoner known as the “Professor”; and a third concerning a prisoner called Tsotsa. Solely on the basis of these three incidents, Martinovic was found guilty under Counts 11 and 12 of wilfully causing great suffering and of cruel treatment pursuant to Articles 2(c), 3 and 7(1) of the Statute.¹¹²

37. Martinovic submits that the Trial Chamber erred in law by finding him responsible for the three incidents because they were not pleaded in the Indictment.¹¹³ In addition he argues that “the defence was not given the elementary information about these events: place, time of commission, the name of the victim, the names of any possible eye-witnesses, etc.”¹¹⁴

38. The Prosecution responds that Martinovic has not identified a miscarriage of justice with regard to the alleged lack of precision of dates of crimes.¹¹⁵ It submits that the dates and the time periods in the Indictment were approximate.¹¹⁶ According to the Prosecution, the witness statements and discovery material in Martinovic’s possession substantiated the details of the charges alleged.¹¹⁷

39. The relevant paragraphs of the Indictment read:¹¹⁸

    [Counts 9 to 12: Torture and Wilfully Causing Great Suffering]

    45. Beginning in May 1993 and at least through January 1994, MLADEN NALETILIC, VINKO MARTINOVIC and their subordinates tortured or wilfully caused great suffering to Bosnian Muslim civilians and prisoners of war captured by the KB or detained under the authority of the HVO. Severe physical and mental suffering was intentionally inflicted on Bosnian Muslim detainees for the following purposes: to obtain from them information; to punish them; to retaliate due to adverse developments in the front lines; or to intimidate them, based on their ethnicity or religion. Throughout this period, MLADEN NALETILIC and VINKO MARTINOVIC repeatedly committed, aided and abetted torture, wilfully caused great suffering, and by their example instigated and encouraged their subordinates to torture or cause great suffering on Bosnian Muslim detainees.

    49. Throughout this period, VINKO MARTINOVIC repeatedly beat in the presence of his subordinates Bosnian Muslim detainees in the area under his command and Bosnian Muslim civilians in the process of their eviction and deportation.

40. The Appeals Chamber notes that with respect to the material facts pertaining to the allegations that Martinovic personally beat prisoners, only the place of the beatings is sufficiently pleaded.¹¹⁹ Information on the date and the identity of the victims of the beatings is missing from the Indictment.¹²⁰ The Appeals Chamber therefore finds that the Indictment’s allegations with respect to Martinovic’s personal involvement in beatings were too vague to provide adequate notice. The Appeals Chamber will now consider whether this vagueness was cured, with respect to each of the three incidents, by the Prosecution’s Chart of Witnesses and Opening Statement.¹²¹

41. The Trial Chamber relied on the evidence of Witnesses K, SS and NN to establish Martinovic’s responsibility for having beaten several prisoners in July or August 1993.¹²²

42. Whilst the Prosecution Chart of Witnesses made it clear that Witness K would provide evidence that Martinovic beat a prisoner at his headquarters in July 1993,¹²³ the Trial Chamber found that several prisoners were beaten in the incident that took place in July or August 1993.¹²⁴ The summaries of Witnesses SS and NN merely indicate that several individuals were beaten by Martinovic on one occasion, without specifying the approximate date.¹²⁵ Only the summary of Witness NN identifies any of the victims of the beatings.¹²⁶ The Appeals Chamber concludes that the summaries of these witnesses (Witnesses K, SS and NN), whether taken separately or together, failed to provide clear and consistent information.

43. In the part of its Opening Statement related to the charges on torture and willfully causing great suffering (Counts 9 to 12) of the Indictment, the Prosecution made no specific reference to these incidents.¹²⁷

44. For these reasons, the Appeals Chamber finds that Martinovic was not provided with sufficiently clear and consistent information that would have put him on notice of the incident of beatings in July or August 1993 for which he was found responsible.

45. For its findings on the incident involving the “Professor”, the Trial Chamber relied on the testimonies of Witnesses II and OO.¹²⁸ In the summary of Witness II in the Prosecution Chart of Witnesses and List of Facts, the incident involving the “Professor” is not mentioned, nor is any reference made to Counts 9 to 12 or paragraph 49 of the Indictment.¹²⁹ The summary of Witness OO, however, explicitly refers to paragraph 49 of the Indictment, which alleges that Martinovic beat prisoners in his area of command. The summary specifies the victim’s identity as “the Professor” and states that the victim was beaten by Martinovic until he collapsed after which Martinovic put him in a garbage can.¹³⁰ These details were specifically reiterated by the Prosecution in its Opening Statement.¹³¹ Although no exact date is provided, the Appeals Chamber considers that the rather detailed information otherwise provided was sufficient to put Martinovic on notice of what specific incident was being alleged. Thus, the defect in the Indictment was cured with respect to this incident by the provision of timely, clear and consistent information.

46. With respect to the incident involving a prisoner called Tsotsa, the Trial Chamber relied on the evidence of Witness Y.¹³² The summary of Witness Y in the Prosecution Chart of Witnesses does not mention beatings administered by Martinovic.¹³³

47. The victim, Tsotsa, is not mentioned elsewhere in the Prosecution Chart of Witnesses. No reference to this incident was made in the Prosecution Opening Statement.¹³⁴ Martinovic was thus not put on notice of the incident of beatings involving a prisoner called Tsotsa.

48. For the foregoing reasons, the Appeals Chamber sets aside the findings that Martinovic was responsible for the incident in July or August 1993 as well as for the incident involving a prisoner called Tsotsa. With respect to the incident involving the “Professor”, Martinovic’s appeal is dismissed.

    (c) Failure to sufficiently plead incidents of unlawful transfer of civilians from the DUM area in Mostar on 13-14 June 1993 and from the Centar II area in Mostar on 29 September 1993

49. The Trial Chamber found Martinovic guilty under Count 18 of committing unlawful transfer of a civilian as a grave breach of the Geneva Conventions of 1949, pursuant to Articles 2(g) and 7(1) of the Statute, as well as under Count 1 for persecutions under Articles 5(h) and 7(1) of the Statute through the underlying act of forcible transfer. These convictions were based on the finding that Martinovic transferred civilians on 13-14 June 1993 from the DUM area in Mostar and on 29 September 1993 from the Centar II area in Mostar.¹³⁵ These were the only incidents of unlawful transfer for which Martinovic was found responsible.¹³⁶ Naletilic was convicted of the same crimes under Article 7(3) of the Statute. In addition, he was also found responsible under Article 7(1) for another instance of transfer that took place in Sovici on 4 May 1993.¹³⁷

50. Martinovic submits that his convictions should be set aside because these incidents were not set out in the Indictment.¹³⁸ Therefore, Martinovic contends, he never addressed these incidents in his Final Trial Brief.¹³⁹ Martinovic further argues that he was only charged with forcible transfers in Mostar on the days following 9 May 1993 and during the first days of July 1993 as underlying acts of persecutions.¹⁴⁰

51. Under his 12th ground of appeal, Naletilic also submits that he could not have been found responsible for the incidents of unlawful transfer in Mostar on 13-14 June and 29 September 1993 because the Indictment did not put him on notice of these charges or of the allegation that he was responsible under Article 7(3) of the Statute.¹⁴¹ He contends that his defence focused on the “two large waves” of unlawful transfer in May and July 1993 which were alleged in the Indictment.¹⁴²

52. In response to Martinovic’s submissions, the Prosecution contends that the Initial Indictment pleaded:¹⁴³ (1 ) the specific date (9 May 1993) when the forced expulsions allegedly began; (2) that they continued over the next six months; (3) that there were two large waves of transfers in May and July 1993; and (4) that all the events were said to have occurred in and around the city of Mostar, a confined geographic area.¹⁴⁴ The Prosecution further contends that its subsequent submissions cured any defect in the Indictment, as evidenced by Martinovic’s failure to raise an objection at the pre-trial stage.¹⁴⁵

53. In response to Naletilic’s submissions, the Prosecution submits that the Indictment charged him under Articles 7(1) and 7(3) of the Statute for persecutions and forcible transfer starting on 9 May 1993 and lasting until at least January 1994, and specified that these offences were carried out by members of the KB in places in and around Mostar.¹⁴⁶ The Prosecution further submits that, to the extent that the Indictment would be deemed defective, the Prosecution’s 65 ter filings and Chart of Witnesses put Naletilic on notice.¹⁴⁷

54. As a preliminary remark, it is necessary to note that paragraph 34(a) of the Indictment, which appears under the persecutions Count, explicitly cross-references to paragraphs 53 and 54 under the unlawful transfer Count, thus making it plain that the same allegations of unlawful transfer constitute underlying acts for persecutions. Notice of forcible transfer as an underlying act of persecutions would thus suffice for notice of the charge of unlawful transfer, and vice versa. Consequently, the allegations in paragraphs 25 to 34 of the Indictment on persecutions must be read together with the allegations in paragraphs 53 and 54 and vice versa.¹⁴⁸

55. The relevant paragraphs of the Indictment read as follows:

    [Count 1: Persecutions]

    26. In the municipality of Mostar, the forcible transfer and imprisonment of Bosnian Muslim civilians started simultaneously with the HV and HVO attack of 9 May 1993 and continued until at least January 1994. However, there were two large waves of forcible transfers and imprisonment: one in the days following the 9 May 1993 attack, and a second during the first days of July 1993. Once the KB and other HVO units had identified persons of Muslim ethnic background, they arrested them, evicted them, plundered their homes and forcibly transferred them to detention centres under HVO authority, or across the confrontation lines to the territories under ABiH control.

    32. Under the command of MLADEN NALETILIC and VINKO MARTINOVIC, the KB forcibly transferred Bosnian Muslim civilians to the confrontation line in the municipality of Mostar and forced them to cross the confrontation line towards the ABiH side. MLADEN NALETILIC and VINKO MARTINOVIC gave orders to expel the Bosnian Muslim population and loot and destroy their houses and properties.

    34. Between about April 1993 and at least January 1994, MLADEN NALETILIC, as commander of the KB, and VINKO MARTINOVIC, as commander of the “Mrmak” or “Vinko Skrobo” sub -unit of the KB, together with other leaders, agents and members of the HV and HVO, planned, instigated, ordered or committed, or aided and abetted the planning, preparation or execution of a crime against humanity, through the widespread or systematic persecutions of Bosnian Muslim civilians on political, racial, ethnic or religious grounds, throughout the territory claimed to belong to the HZ H-B and HR H-B by the following means, including, as applicable, the acts and conduct described in Counts 2 through 22 below:

    (a) unlawfully confining, detaining, forcibly transferring and deporting Bosnian Muslim civilians, including as described in paragraphs 53 and 54; […]

    [Count 18: Forcible Transfer]

    54. In the municipality of Mostar, MLADEN NALETILIC and VINKO MARTINOVIC were responsible for and ordered the forcible transfer of Bosnian Muslim civilians that started on the 9 May 1993 and continued until at least January 1994. The KB members under their command were prominent in the eviction, arrest and forcible transfers of Bosnian Muslim civilians throughout the relevant period, and particularly during the two large waves of forcible transfers that took place in May and July 1993. Once the KB and other HVO units had identified persons of Muslim ethnic background, they arrested them, evicted them, plundered their homes and forcibly transferred them across the confrontation lines to the territories under ABiH control. The ABiH held a section of the city which was under siege by the HV and HVO forces, who were shelling intensely the area and preventing the arrival of humanitarian aid and basic supplies. MLADEN NALETILIC and VINKO MARTINOVIC commanded operations for this purpose and gave orders to their subordinates to proceed with the forcible transfers.

    (i) Whether the Indictment suffered from a material defect in the way the two incidents were pleaded in relation to Martinovic

56. Since the Prosecution alleged that Martinovic personally committed the acts constituting unlawful transfer, it was necessary for it to set out, so far as possible, the identity of the victims, the place and approximate date of these alleged criminal acts, and the means by which they were committed “with the greatest precision”.¹⁴⁹

57. The Indictment states that the unlawful transfers included “identif[ying] persons of Muslim ethnic background” and “forcibly transferr[ing] them across the confrontation lines to the territories under ABiH control”.¹⁵⁰ The Indictment further alleges that Martinovic “commanded operations” of unlawful transfers.¹⁵¹ The Appeals Chamber finds that the means by which Martinovic committed the unlawful transfers were sufficiently pleaded in the Indictment.

58. The victims of the unlawful transfers are generally identified in the Indictment as “Bosnian Muslim civilians”.¹⁵² However, since in relation to the charge of unlawful transfer, it was the Prosecution’s case that the unlawful transfers took place repeatedly and on a large scale, it is sufficient that the victims were identified by category in the Indictment.¹⁵³

59. The Indictment further alleges that unlawful transfers took place in “the municipality of Mostar”, from 9 May 1993 until at least January 1994 in general, and during “ two large waves”: “one on the days following the 9 May 1993 attack, and a second during the first days of July 1993”.¹⁵⁴ Martinovic was found responsible for incidents of unlawful transfer from West to East Mostar which took place on 13-14 June and 29 September 1993. The Appeals Chamber finds that the allegations that unlawful transfer took place in the municipality of Mostar in “the days following the 9 May 1993 attack” and “during the first days of July 1993”¹⁵⁵ do not sufficiently plead the dates of the 13-14 June and 29 September 1993 incidents of unlawful transfer, and that the more general reference to a nine-month range is insufficiently specific. Therefore, the Trial Chamber erred in failing to find that the Indictment was defective with regard to these incidents for which Martinovic was found responsible.

60. For its argument that Martinovic was put on notice of the incidents of unlawful transfer on 13-14 June 1993 and on 29 September 1993, the Prosecution invokes information provided in its Chart of Witnesses, in the summary of Witness Jeremy Bowen in the Prosecution Rule 65 ter Witnesses’ List as well as in Exhibits PP 456, PP 455.1 and PP 620.1.¹⁵⁶

61. The Appeals Chamber notes that the summary of Witness Jeremy Bowen stated that he would give evidence on the conditions of the population in East Mostar in August and September 1993, and that the documentary that he had made included footage of civilians expelled across the front-line from West to East Mostar. The summary did not provide any specific information as to the incidents of 13-14 June and 29 September 1993 or as to Martinovic’s role therein.¹⁵⁷ With respect to Exhibits PP 456, PP 455.1 and PP 620.1, the Appeals Chamber notes that none of the Prosecution’s written submissions at the pre-trial stage made clear the significance of these exhibits in detailing the forcible transfer charges; indeed, with the exception of one, none of the exhibits were even mentioned in the Prosecution Rule 65 ter Exhibits’ List.¹⁵⁸ The Appeals Chamber considers that, as with witness statements,¹⁵⁹ the mere service of potential exhibits pursuant to the disclosure requirements does not suffice to inform an accused of material facts that the Prosecution intends to prove at trial.

62. The Prosecution Pre-Trial Brief and Opening Statement provide that 9 May 1993 marked the beginning of an extended period of forced evictions from West Mostar into East Mostar,¹⁶⁰ and that unlawful transfers from West Mostar into East Mostar took place following 30 June 1993.¹⁶¹ The Prosecution List of Facts states that Muslim civilians were forcibly transferred “in very large numbers in the days following the attack of 9 May 1993 and during the first days of July 1993”.¹⁶² This information does not contradict the Indictment, but confirms and provides further particulars of the allegations in the Indictment regarding the “two large waves” of unlawful transfers in May and July 1993.¹⁶³ These post-indictment submissions of the Prosecution thus indicate that it intended to rely primarily on the “two large waves”.

63. In light of the foregoing, the question is whether the information in the Prosecution Chart of Witnesses alone put Martinovic on notice of the unlawful transfers of 13 -14 June and 29 September 1993.

64. As stated earlier, the information in the Prosecution Chart of Witnesses was provided to Martinovic in a timely manner. It mentions the date of the 13 June 1993 incident in the summaries of five witnesses, including the summary of Witness WW, upon whose testimony the Trial Chamber mainly relied to establish that this incident took place,¹⁶⁴ and also provides precise details about the incident.¹⁶⁵ Furthermore, all these summaries explicitly refer to the charge of unlawful transfer in the Indictment as well as the charge of forcible transfer as an underlying act of persecutions.¹⁶⁶ This information is clear and was consistently repeated so that it put Martinovic on notice that he would have to answer to an allegation of having participated in the unlawful transfer that took place on 13-14 June 1993.¹⁶⁷ The Appeals Chamber therefore concludes that the defect in the Indictment regarding the date of this incident was cured by the Prosecution in relation to Martinovic.

65. The Prosecution Chart of Witnesses also mentions the exact date of the unlawful transfer of 29 September 1993. It provides precise details regarding what happened during the incident, and further identifies the victims and the location of the incident.¹⁶⁸ It moreover refers to the charge of forcible transfer as an underlying act of persecutions. As noted above, the Indictment made it clear that the same allegations of unlawful transfer constitute underlying acts for persecutions. The Appeals Chamber therefore concludes that the defect in the Indictment regarding the date of this incident was cured by the Prosecution in relation to Martinovic.

66. For the foregoing reasons, this part of Martinovic’s sub-ground of appeal is dismissed.

    (ii) Whether the Indictment suffered from a material defect in the way the two incidents were pleaded in relation to Naletilic

67. Because the relevant facts to be pleaded depend on the mode of responsibility alleged,¹⁶⁹ the Appeals Chamber’s finding that the two incidents of unlawful transfer were inadequately pleaded with respect to Martinovic does not automatically transfer to Naletilic, who was charged under Article 7(3) of the Statute. Among the material facts which must be pleaded in an indictment in relation to an allegation of superior responsibility are “the conduct of the accused by which he may be found” to have had the requisite mens rea, the “(acts( of those others for which he is alleged to be responsible” and “the conduct of the accused by which he may be found to have failed to take the necessary and reasonable measures to prevent such acts or to punish the persons who committed them”.¹⁷⁰ The Appeals Chamber understands Naletilic to be arguing that his own conduct and mens rea in relation to the two incidents were insufficiently pleaded in the Indictment, not the conduct of his subordinates.¹⁷¹

68. The Trial Chamber found that Naletilic had the requisite mens rea on the basis that unlawful transfers conducted by his subordinates took place with sufficient regularity that he must have known about them.¹⁷² The Appeals Chamber finds that the material facts underlying this finding were adequately pleaded in the Indictment. Specifically, the Indictment alleges that unlawful transfers “continued” throughout the period between 9 May 1993 and January 1994, which implies that they occurred with certain regularity.¹⁷³ Naletilic’s subordinates are alleged to have been “prominent” in this regular activity “throughout” the relevant nine month period.¹⁷⁴

69. The Trial Chamber further found that Naletilic did nothing to prevent or punish but rather endorsed unlawful transfers.¹⁷⁵ The Indictment alleges that “KB members under (Naletilic’s( command were prominent in the eviction, arrest and forcible transfers of Bosnian Muslim civilians throughout the relevant period” and that he was “responsible for and ordered” the unlawful transfers.¹⁷⁶ In light of these allegations and the fact that the Indictment charges Naletilic with responsibility pursuant to Article 7(3) of the Statute, it is apparent that Naletilic is alleged to have endorsed rather than prevented the unlawful transfers.

70. For the foregoing reasons, the Appeals Chamber finds that Naletilic has failed to show that the Indictment was defective with respect to his responsibility for these two incidents.

    (d) Failure to sufficiently plead incidents of plunder in Mostar other than those taking place at the DUM area on 13 June 1993

71. In paragraph 628 of its Judgement, the Trial Chamber found as follows:

    Regarding the other plunder incidents, Vinko Martinovic was present on some occasions when his soldiers committed acts of looting; sometimes explicitly organising how plunder should take place. On other occasions, apartments were looted by soldiers in areas under his responsibility and by soldiers subordinate to Martinovic himself, even if he was not present on the spot. The evidence shows that Vinko Martinovic knew that plunder was occurring in several instances during this period and failed to take the necessary and reasonable measures to prevent it or to punish the perpetrators. The Chamber finds him responsible of plunder in locations other than the DUM neighbourhood under Articles 3(e) and 7(3) of the Statute.

    Based in part on the same incidents, Martinovic was also convicted of persecutions under Articles 5(h) and 7(1) of the Statute.¹⁷⁷

72. The Trial Chamber based its findings regarding these incidents, inter alia, on the following testimonies: Witness OO gave evidence to being forced by the Vinko Skrobo ATG to carry looted goods in Mostar between the end of July and 17 September 1993;¹⁷⁸ Witness F gave evidence to being forced on one occasion to loot apartments in an area under the responsibility of Martinovic between July 1993 and March 1994;¹⁷⁹ and Witness II testified about being frequently ordered by soldiers of the Vinko Skrobo ATG to loot abandoned apartments between the end of July and December 1993.¹⁸⁰

73. Martinovic submits that he should not have been found responsible for these incidents because they were insufficiently pleaded in the Indictment.¹⁸¹ The Prosecution responds that its pre-trial submissions cured this defect.¹⁸²

74. In light of these findings of the Trial Chamber, the Appeals Chamber will now address whether the Indictment put Martinovic on notice of: (1) his own alleged conduct and mens rea, and (2) the conduct of those others for which he is alleged to be responsible.¹⁸³

75. Paragraph 57 of the Indictment contains the allegations on plunder and puts these allegations in the context of the campaign of persecutions. In turn, the allegations on persecutions in the Indictment refer back to paragraph 57.¹⁸⁴ The charges on plunder must thus be read in conjunction with the persecutions charges. Paragraph 57 of the Indictment reads as follows:

    [Counts 19 to 22: Destruction and Plunder of Property:]

    57. Following the HV and HVO attack on Mostar of 9 May 1993 and in the context of the subsequent campaign of persecutions against the Bosnian Muslim population, the units under the command of MLADEN NALETILIC and VINKO MARTINOVIC plundered systematically the Bosnian Muslim houses and properties.¹⁸⁵

    The plunder about which Witnesses OO, F and II gave evidence took place in Mostar.¹⁸⁶ The relevant part of the persecutions allegations in the Indictment reads as follows:

    [Count 1: Persecutions:]

    26. In the municipality of Mostar, the forcible transfer and imprisonment of Bosnian Muslim civilians started simultaneously with the HV and HVO attack of 9 May 1993 and continued until at least January 1994. However, there were two large waves of forcible transfers and imprisonment: one in the days following the 9 May 1993 attack, and a second during the first days of July 1993. Once the KB and other HVO units had identified persons of Muslim ethnic background, they arrested them, evicted them, plundered their homes and forcibly transferred them to detention centres under HVO authority, or across the confrontation lines to the territories under ABiH control.¹⁸⁷

    Count 21 of the Indictment charges Martinovic with responsibility for plunder under Article 7(3) of the Statute. The section in the Indictment on “General Allegations” states the legal prerequisites for Article 7(3).¹⁸⁸ The Appeals Chamber notes that the law on indictments requires more than a mere restatement of Article 7(3) in an indictment.¹⁸⁹ Among the material facts which must be pleaded are the conduct of the accused by which he may be found to have had the mens rea required under Article 7(3 ) and the conduct of those others for which he is alleged to be responsible.¹⁹⁰

76. As regards Martinovic’s own conduct, the Indictment alleges that the base of the Vinko Skrobo ATG “was used as centre for the attacks against Bosnian Muslim civilians, particularly […] looting”¹⁹¹ and that Martinovic gave orders to loot the houses and properties of the BH Muslim population.¹⁹² The Indictment further alleges that “units under the command” of Martinovic “plundered systematically the Bosnian Muslim houses and properties” in the “municipality of Mostar”.¹⁹³ This information was sufficiently detailed to enable Martinovic to prepare his defence.¹⁹⁴ The Indictment put Martinovic on notice of the conduct by which he may have been found to have known or had reason to know that plunder was about to be committed or had been committed by his subordinates as well as the conduct by which he may have been found to have failed to take the necessary and reasonable measures to prevent these acts or to punish those who committed them.

77. As regards the conduct of Martinovic’s subordinates for which he is alleged to be responsible, the Trial Chamber found that the incidents of plunder that Witnesses OO, F and II gave evidence to concerned incidents where prisoners of war were forced to assist in the plunder,¹⁹⁵ and that these incidents took place from the end of July 1993 onwards.¹⁹⁶ Even if there was no explicit cross-reference between these sections of the Indictment, the charges in the Indictment on unlawful labour (Count 5) put Martinovic on notice that plunder was also alleged to have been carried out by forcing prisoners of war to assist in the looting.¹⁹⁷

78. However, the Indictment’s allegations were inadequate as to the date of the alleged incidents. The Indictment alleges that the incidents of plunder took place from 9 May 1993 until at least January 1994,¹⁹⁸ a nine month period. As noted by the Trial Chamber in its 15 February 2000 Decision, no specific examples of plunder were provided in the Indictment¹⁹⁹ although the Indictment does plead that Martinovic’s unit “systematically” plundered BH houses and properties. The Appeals Chamber finds that, even taking into consideration that Martinovic was found responsible pursuant to Article 7(3) of the Statute, these allegations did not put Martinovic on notice of a sufficiently specific time span within which those incidents may have taken place. The date of these plunder incidents was therefore insufficiently pleaded in the Indictment.

79. On the basis of the foregoing, the Appeals Chamber finds that the Trial Chamber erred in failing to find that the Indictment was defective with respect to the allegations against Martinovic under Count 21 of the Indictment for Article 7(3) responsibility for incidents of plunder in Mostar other than those that took place in the DUM area on 13 June 1993.

80. The Prosecution invokes the summaries of Witnesses OO and II in its Chart of Witnesses for its argument that Martinovic was put on notice of the incidents of plunder in Mostar other than those that took place in the DUM area on 13 June 1993.²⁰⁰ The summary of Witness OO in the Prosecution Chart of Witnesses indicates that forced labour took place in Martinovic’s area of responsibility and that this activity was carried out from 4 July 1993 onwards.²⁰¹ The explicit reference in the summary of Witness OO to the allegations of plunder in the Indictment indicated that this forced labour included looting.²⁰² The summary of Witness II indicates that he, while in custody of Martinovic’s unit, was taken to assist in the looting of houses from early August 1993.²⁰³

81. The sections of the Chart of Witnesses invoked by the Prosecution did not, as such, put Martinovic on notice as to the date of the aforementioned incidents. The Appeals Chamber further notes that the summary of Witness F indicated that from 1 July 1993 onwards prisoners from the Heliodrom were forced by Martinovic’s unit to loot furniture from abandoned Muslim houses.²⁰⁴ This summary also did not provide specifics about the date of the aforementioned incidents.

82. The Prosecution Opening Statement does not provide any information beyond that in the Indictment on the relevant incidents of plunder.²⁰⁵

83. However, the Appeals Chamber notes that the Indictment alleges evictions and forcible transfers that took place in “two large waves” in May and July 1993.²⁰⁶ The Prosecution Pre-Trial Brief clearly and repeatedly puts the allegations of plunder in close connection with the alleged eviction and forcible transfer of BH Muslims.²⁰⁷ This would indicate that plunder is also alleged to have taken place in May and July 1993. The Chart of Witnesses indicates that Witnesses OO, F and II were to testify to plunder incidents taking place in July and early August 1993.²⁰⁸ The summaries of all these witnesses clearly refer to the plunder charges against Martinovic.²⁰⁹ The Appeals Chamber finds that this information is clear and consistent and was provided in a timely manner to put Martinovic on notice of the dates of the relevant incidents.

84. For these reasons, the Appeals Chamber finds that the defect in the Indictment regarding the plunder incidents referred to by Witnesses OO, F and II was subsequently cured by the Prosecution.

    (e) Failure to sufficiently plead incidents of mistreatment in Ljubuski prison

85. Under Counts 11 and 12, the Trial Chamber found, inter alia, that Naletilic bore responsibility, pursuant to Articles 2(c), 3 and 7(3) of the Statute, for certain incidents of mistreatment committed by members of the KB in Ljubuski prison.²¹⁰ Naletilic claims that the Indictment failed to allege the time, place, manner and exact perpetrators of these incidents.²¹¹ He further contends that he did not know from the Indictment whether and when Ljubuski prison was under the command of the KB, or that the warden, as found by the Trial Chamber, was a member of the KB.²¹²

86. The Prosecution argues that the charges against Naletilic in paragraph 50 of the Indictment include beatings and torture in Ljubuski and that the same paragraph clearly sets out that he knew or had reason to know that his subordinates were about to commit such acts, or had done so.²¹³

87. Paragraph 50 of the Indictment reads as follows:

    50. Throughout this period (beginning in May 1993 and at least through January 1994 (,²¹⁴ the beatings and torture of Bosnian Muslim civilians and prisoners of war became a common practice of the members of the KB. Beatings and torture of Bosnian Muslim civilians and prisoners of war were committed by a large number of members of the KB, including commanders. These beatings and tortures were committed at different bases of the KB in Mostar, Listica – Siroki Brijeg and Ljubuski. Beatings and tortures were also inflicted at other detention centres and camps under the authority of the HVO, such as the Ljubu ski prison, the HELIODROM camp. Beatings and tortures were additionally inflicted at several other locations following the capture of prisoners. MLADEN NALETILIC and VINKO MARTINOVIC knew, or had reason to know, that their subordinates were about to commit such acts, or had done so, and they failed to take the necessary and reasonable measures to prevent such further acts, or to punish the perpetrators thereof.

88. Paragraph 50 of the Indictment charges Naletilic with command responsibility for the mistreatment of prisoners in Ljubuski prison. Only “members of the KB” are alleged to have been involved in this mistreatment. The material fact that subordinates to Naletilic carried out mistreatment is thereby sufficiently pleaded.²¹⁵ The manner of the mistreatment is sufficiently pleaded in the allegations that it amounted to cruel treatment and wilfully causing great suffering. Naletilic’s arguments that he was not put on notice of the place, perpetrators and manner of mistreatment are therefore dismissed.

89. The mistreatment allegedly took place from May 1993 through at least January 1994.²¹⁶ No particular incidents of mistreatment in Ljubuski are mentioned in the Indictment. However, it is clear from paragraph 50 of the Indictment, especially from the allegation that beatings and torture of BH Muslim civilians and prisoners of war became a “common practice ”, that Naletilic is alleged to have known or had reason to know of the regular occurrence of beatings in Ljubuski prison, rather than of specific incidents. Naletilic’s ability to prepare a defence for this charge did not depend on his ability to know each and every beating that took place there.

90. However, the Prosecution was obliged to allege in the Indictment the specific acts or course of conduct of Naletilic himself that formed the basis for his liability. In this respect, the Indictment was inadequate. The Trial Chamber’s findings reveal that one incident in particular was critical to the establishment of Naletilic’s command responsibility, namely, his observation of the beating of Witness Y during his transportation to Ljubuski prison:

    The Chamber finds that it has been proven beyond reasonable doubt that soldiers of the KB and the Vinko Skrobo under the command of Mladen Naletilic and Vinko Martinovic, namely Romeo Bla`evic, Ernest Takac, Robo and Ivan Hrkac, the brother of Cikota, participated in those severe beatings of the helpless prisoners. The Chamber notes that the name Ivica Kraljevic (the warden of Ljubuski prison²¹⁷( appears on Exhibit PP 704, the salary list of the KB as of November 1993. The Chamber is satisfied that Mladen Naletilic had reason to know about (beatings at Ljubuski ( being committed by his subordinates after he had seen for himself how KB soldiers, in particular Robo, had severely mistreated some of the same prisoners, as for instance, witness Y, already on the bus ride on their way to the Ljubuski prison.²¹⁸ The evidence shows that Mladen Naletilic merely told his soldiers on that occasion to stop and to get back on the bus. The Chamber finds that Mladen Naletilic’s failure to punish his soldiers for the mistreatment of witness Y near Sovici conveyed the message that their behaviour was tolerable. After this incident, he knew that his soldiers engaged in brutal mistreatment of prisoners. He had reason to know that there was a high risk of his soldiers visiting the Ljubuski prison to continue their revenge action on enemy soldiers by maltreating prisoners there. The evidence from several witnesses regarding the complaint of the warden about his inability to prevent KB soldiers from entering the prison and mistreating prisoners is telling. Mladen Naletilic bears command responsibility pursuant to Article 7(3) of the Statute (Counts 11 and 12).²¹⁹

91. The incident involving Witness Y²²⁰ thus supported the Trial Chamber’s findings that Naletilic knew that his soldiers engaged in brutal mistreatment and that he “conveyed the message that their behaviour was tolerable”. Naletilic’s knowledge of the mistreatment of Witness Y constituted a material fact which should have been pleaded in the Indictment. In its absence, the Appeals Chamber finds that the Trial Chamber erred in failing to find that the Indictment was defective with respect to Naletilic’s responsibility for events alleged to have occurred in Ljubuski prison under Counts 11 and 12.

92. As to Naletilic’s argument that he was not put on notice of the allegation that the warden of Ljubuski prison was a member of the KB, the Appeals Chamber notes that, for reasons which will be stated below, no reasonable trier of fact could have concluded that Ivica Kraljevic, the warden of Ljubuski prison, was the same Ivica Kraljevic listed in Exhibit PP 704, a salary list for November 1993 of members of the KB and ATG units.²²¹ The question as to whether Naletilic was put on notice of the allegation that the warden of Ljubu ski prison was a member of the KB is therefore moot.

93. The Prosecution Pre-Trial Brief and its Opening Statement do not mention Naletilic’s knowledge of the mistreatment of Witness Y.²²² The summary of Witness Y in the Prosecution Chart of Witnesses provides that, during the bus transport to Ljubuski prison, he was beaten by four or five of Naletilic ’s soldiers, including Robo, in the presence of Naletilic. The summary further states that Naletilic’s soldiers would often beat prisoners in Ljubuski prison, and also made explicit reference to Counts 9 to 12 and paragraph 50 of the Indictment.²²³

94. The Appeals Chamber considers that the summary of Witness Y in the Prosecution Chart of Witnesses provided timely, clear and consistent information of Naletilic’s knowledge of the mistreatment of Witness Y on the way to Ljubuski. It therefore cured the defect in the Indictment.

    (f) Conclusion

95. The Appeals Chamber finds that the Trial Chamber erred in failing to find that the Indictment was defective because it failed to plead material facts in relation to all the charges examined in the present section, with the exception of the allegations on Naletilic’s command responsibility for unlawful transfer. The defects in the Indictment pertaining to (1) the incident of beating involving the “Professor”; (2) the 13-14 June 1993 and 29 September 1993 incidents of unlawful transfer; (3 ) the plunder incidents described by Witnesses OO, F and II; and (4) Naletilic’s mens rea with respect to mistreatment in Ljubuski prison were cured by the Prosecution’s post-indictment communications.

96. The Appeals Chamber finds that the Trial Chamber erred in finding Martinovic responsible for: (1) turning a private property into the headquarters of his unit ; and (2) the incidents of beating in July or August 1993 involving several prisoners and that involving a prisoner called Tsotsa. For the incident of turning a private property into the headquarters of Martinovic’s unit, the finding that Martinovic was responsible for unlawful labour pursuant to Articles 3 and 7(1) of the Statute is set aside.²²⁴ For the incidents of beating in July or August 1993 involving several prisoners and that involving a prisoner called Tsotsa, the findings that Martinovic was responsible for wilfully causing great suffering and for cruel treatment pursuant to Articles 2(c), 3 and 7(1) of the Statute are set aside.²²⁵ The implications of these findings on the sentence of Martinovic will be duly considered in the context of his appeal from sentence.

97. For the foregoing reasons, Martinovic’s sub-ground of appeal under his second ground of appeal is allowed in part. Naletilic’s 12th ground of appeal is dismissed in its entirety, and his 21st ground of appeal is dismissed in so far as it relates to the vagueness of the Indictment.
    B. Alternative charging

98. As part of his first ground of appeal Martinovic submits that the Trial Chamber erred in law in finding that alternative charges could be brought against him and cumulative convictions entered against him.²²⁶ His submissions on cumulative convictions will be considered elsewhere in this judgement, together with the Prosecution’s fourth ground of appeal.

99. Under Counts 13 to 15 of the Indictment, Martinovic was charged with the murder of Nenad Harmand`ic as a crime against humanity under Article 5(a) and as a violation of the laws or customs of war under Article 3, and with wilful killing as a grave breach of the Geneva Conventions of 1949 under Article 2(a) of the Statute. In the alternative, under Counts 16 and 17 of the Indictment, Martinovic was charged with the cruel treatment of Nenad Harmandzicas a violation of the laws or customs of war under Article 3 and with wilfully causing great suffering or serious injury to body or health as a grave breach of the Geneva Conventions of 1949 under Article  2(c) of the Statute. In its Pre-Trial Brief, the Prosecution requested the Trial Chamber to consider Counts 16 and 17 only in the event that the Trial Chamber were to conclude that the Prosecution had failed to prove beyond reasonable doubt Martinovic’s responsibility under Counts 13 to 15 for the unlawful killing of Nenad Harmandzic.²²⁷

100. The Trial Chamber found Martinovic responsible for the cruel treatment and wilfully causing great suffering or serious injury to body or health of Nenad Harmandzic pursuant to Articles 2(c), 3 and 7(1) of the Statute (Counts 16 and 17).²²⁸ The Trial Chamber was also satisfied that Martinovic bore individual criminal responsibility for aiding and abetting the murder and wilful killing of Nenad Harmandzicpursuant to Articles 2(a), 3, 5(a) and 7(1) of the Statute (Counts 13 to 15).²²⁹ The Trial Chamber entered a conviction for Counts 13, 14 and 15 of the Indictment and held that, “(d(ue to their character as alternative charges, the findings on the alternative Counts 16 and 17 will not be considered”.²³⁰

101. Martinovic argues that these alternate charges put him in a position where he could not know “against which criminal act he must defend himself”.²³¹ Martinovic further argues that alternative charging based on the same conduct is prejudicial to him because the same act or event is given multiple and aggravating characterisations, and that as a result he was placed in a more onerous position than he would have been had he been tried and charged in his own country.²³² He further argues that alternative charging based on the same conduct results in a failure to accurately or fairly reflect the role and knowledge of an accused of events with which that accused is charged or convicted.²³³ Martinovic provides no specific reason that he was prejudiced under the circumstances of this case; rather he appears to be arguing more generally that alternative charging is impermissible as a matter of law.

102. For the reasons set out below, the Appeals Chamber finds that, while alternative charging on the basis of the same conduct is generally permissible, it depends on the circumstances of the case. In this case, the Appeals Chamber agrees with the Trial Chamber’s finding that alternative charging was permissible.

103. The Appeals Chamber has previously held that cumulative charging on the basis of the same acts is generally allowed on the basis that “prior to the presentation of all of the evidence, it is not possible to determine to a certainty which of the charges brought against an accused will be proven.”²³⁴ The same reasoning allows for alternative charging. As with cumulative charging, “[t]he Trial Chamber is better poised, after the parties’ presentation of the evidence, to evaluate which of the charges may be retained, based upon the sufficiency of the evidence.”²³⁵

104. Martinovic further submits that the convictions entered against him for Counts 13 (murder as a crime against humanity) and 14 (wilful killing as a grave breach of the Geneva Conventions of 1949) went beyond the allegations made in the Indictment and convicted him of acts for which the Prosecution did not charge him.²³⁶ This assertion appears to be irrelevant to Martinovic’s claims concerning the permissibility of alternative charging. Furthermore, the Appeals Chamber finds that the material facts underpinning the charges in Counts 13 and 14 are sufficiently set out in paragraphs 51 and 52 of the Indictment.

105. For the foregoing reasons, Martinovic’s sub-ground of appeal is dismissed.
     IV. ERROR ALLEGED BY NALETILIC AND MARTINOVIC CONCERNING THE INTERNATIONAL CHARACTER OF THE ARMED CONFLICT

106. The Trial Chamber found Naletilic guilty, pursuant to Article 2 of the Statute, of three counts of grave breaches of the Geneva Conventions of 1949, namely: Count 10 (torture), Count 12 (wilfully causing great suffering or serious injury to body or health) and Count 18 (unlawful transfer of a civilian). It found Martinovic guilty, pursuant to Article 2 of the Statute, of four counts of grave breaches of the Geneva Conventions of 1949, namely: Count 3 (inhuman treatment), Count 12 (wilfully causing great suffering or serious injury to body or health), Count 14 (wilful killing ) and Count 18 (unlawful transfer of a civilian).²³⁷

107. Naletilic, under his 37th ground of appeal, and Martinovic, under his first ground of appeal, submit that the Trial Chamber erred in law by holding that an international armed conflict existed during the period and in the area relevant to the Indictment, and consequently by finding them guilty of grave breaches of the Geneva Conventions of 1949 pursuant to Article 2 of the Statute.²³⁸ They submit that the evidence presented to the Trial Chamber was unreliable and/ or unauthenticated²³⁹ and, in addition, that they cannot be held responsible for the character of the armed conflict.²⁴⁰
     A. Argument that the evidence presented to the Trial Chamber was unreliable and/or unauthenticated

108. The Appeals Chamber finds that Naletilic’s and Martinovic’s claims concerning the unreliability of the evidence of an international armed conflict are limited to a mere assertion and are insufficiently precise. In the absence of any substantiation, this sub-ground of appeal fails to meet the formal requirements for raising an appeal as explicated in the section of this Judgement on the standard of review.²⁴¹ Consequently, the Appeals Chamber will not consider this sub-ground of appeal on its merits, and it is hereby dismissed.
     B. Argument that Naletilic and Martinovic cannot be made responsible for the character of the armed conflict

109. Naletilic’s and Martinovic’s assertions that they “cannot be held responsible for the character of the armed conflict” because it was beyond their knowledge²⁴² mischaracterise the Trial Chamber’s findings. They were not found responsible for the fact that the conflict was international, but rather for the crimes committed in the context of the international armed conflict.²⁴³ However, the Appeals Chamber will also consider a related argument that both Naletilic and Martinovic assert by implication: that the Trial Chamber erred in law by failing to require the Prosecution to prove, as an element of crimes under Article 2 of the Statute, that they were aware of the international character of the conflict.

110. The Appeals Chamber recalls that the chapeau in Article 2 of the Statute states as follows:

     The International Tribunal shall have the power to prosecute persons committing or ordering to be committed grave breaches of the Geneva Conventions of 12 August 1949, namely the following acts against persons or property protected under the provisions of the relevant Geneva Conventions [...]

     In the Tadic case, the Appeals Chamber interpreted this chapeau as encompassing “general legal ingredients”, which must be found to exist in addition to the “specific legal ingredients” for an individual crime listed under Article 2 in order for an accused to be convicted of that crime.²⁴⁴ The Appeals Chamber listed one of those general legal ingredients as follows:

     (i) The nature of the conflict. According to the interpretation given by the Appeals Chamber in its decision on a Defence motion for interlocutory appeal on jurisdiction in the present case, the international nature of the conflict is a prerequisite for the applicability of Article 2.²⁴⁵

     This statement on the international character of the armed conflict as a general legal ingredient that must be found in order for Article 2 to apply has been consistently followed in the jurisprudence of the International Tribunal.²⁴⁶

111. The Appeals Chamber considers that in Tadic, the Appeals Chamber specifically stated that the international character of the armed conflict is a prerequisite for determining whether Article 2 applies in the first place to particular conduct allegedly committed by an accused.²⁴⁷ It held that the first question of importance under Article 2 was whether the conflict was international at all relevant times.²⁴⁸ This holding was based upon an earlier interlocutory appeal decision on jurisdiction in Tadic whereby the Appeals Chamber found that Article 2 incorporates the grave breaches regime of the Geneva Conventions of 1949, which includes the requirement that the grave breaches must have been committed in the context of an international armed conflict.²⁴⁹ The Appeals Chamber observed that:

     The grave breaches system of the Geneva Conventions establishes a twofold system : there is on the one hand an enumeration of offences that are regarded so serious as to constitute “grave breaches”; closely bound up with this enumeration a mandatory enforcement mechanism is set up, based on the concept of a duty and a right of all Contracting States to search for and try or extradite persons allegedly responsible for “grave breaches.”²⁵⁰

     The Appeals Chamber concluded that the “international armed conflict element” is merely a function of the system of “universal mandatory jurisdiction” that was established for the enforcement of the grave breaches provisions of the Geneva Conventions of 1949.²⁵¹ It is not part of the enumeration of particular offences falling within the grave breaches regime. The Appeals Chamber held that it serves as a “necessary” limitation on the universal mandatory jurisdiction enforcement mechanism “in light of the intrusion on State sovereignty that such mandatory universal jurisdiction represents.”²⁵²

112. While the Appeals Chamber in Tadic recognised that universal mandatory jurisdiction as an enforcement mechanism under the Geneva Conventions of 1949 for the grave breaches regime had not been imported into Article 2 of the Statute due to the obvious fact that the International Tribunal itself constitutes an enforcement mechanism, it nevertheless concluded that the international armed conflict element had been incorporated.²⁵³ It found that this interpretation of Article 2 of the Statute “is the only one warranted by the text of the Statute and the relevant provisions of the Geneva Conventions as well as by a logical construction of their interplay as dictated by Article 2.”²⁵⁴ Furthermore, the Appeals Chamber concluded that “in the present state of development of ?customary internationalg law, Article 2 of the Statute only applies to offences committed within the context of international armed conflicts”.²⁵⁵

113. Tadic did not directly address the further question posed by this case : whether the mental state element of Article 2 crimes encompasses knowledge of the international character of the armed conflict. In Kordic and Cerkez, the Appeals Chamber provided an affirmative answer to that question, stating that although the accused need not “make a correct legal evaluation as to the international character of the armed conflict”, he must be “aware of the factual circumstances, e.g., that a foreign state was involved in the armed conflict”.²⁵⁶ The Appeals Chamber considers it necessary to elucidate the matter further. In the Appeals Chamber’s view, the conclusion of Kordic and Cerkez was correct, and follows logically from the principles established in Tadic.

114. The principle of individual guilt requires that an accused can only be convicted for a crime if his mens rea comprises the actus reus of the crime. To convict him without proving that he knew of the facts that were necessary to make his conduct a crime is to deny him his entitlement to the presumption of innocence. The specific required mental state will vary, of course, depending on the crime and the mode of liability. But the core principle is the same: for a conduct to entail criminal liability, it must be possible for an individual to determine ex ante, based on the facts available to him, that the conduct is criminal. At a minimum, then, to convict an accused of a crime, he must have had knowledge of the facts that made his or her conduct criminal.²⁵⁷

115. The critical question before the Appeals Chamber is therefore this: what conduct constitutes a crime amounting to a “grave breach” of the Geneva Conventions? Is it the mere commission of acts listed in Article 2(a) to (h) of the Statute, such as “wilful killing”? Or is it the commission of such acts on the basis that they were committed in the course of an international armed conflict?

116. The Appeals Chamber concludes that the existence and international character of an armed conflict are both jurisdictional prerequisites (as established in Tadic) and substantive elements of crimes pursuant to Article 2 of the Statute. The fact that something is a jurisdictional prerequisite does not mean that it does not at the same time constitute an element of a crime. If certain conduct becomes a crime under the Statute only if it occurs in the context of an international armed conflict, the existence of such a conflict is not merely a jurisdictional prerequisite : it is a substantive element of the crime charged. Thus, the Prosecution’s obligation to prove intent also encompasses the accused’s knowledge of the facts pertinent to the internationality of an armed conflict.

117. Article 2 of the Statute gives the Tribunal “the power to prosecute persons committing or ordering to be committed grave breaches of the Geneva Conventions of 12 August 1949, namely, (certain( acts against persons or property protected under the provisions of the relevant Geneva Convention”. The language of the Geneva Conventions makes clear that the article applies “only in international armed conflicts ”.²⁵⁸ It is not possible to speak of “grave breaches” or of “persons or property protected under the provisions of the relevant Geneva Convention” without implying that there is an on-going international armed conflict during which the offence is committed or during which the relevant Geneva Convention grants protection. Those statutory references form part of the text creating the crime; they are integral parts of the crime; they are not external to it. The existence of an international armed conflict is therefore an element of a grave breach.

118. The principle of individual guilt, as explained above, requires that fundamental characteristics of a war crime be mirrored in the perpetrator’s mind. In this context, it is useful to remark that, in the case of crimes falling under Article 2 of the Statute, there has to be a nexus between the act of the accused and the international armed conflict.²⁵⁹ It is illogical to say that there is such a nexus unless it is proved that the accused has been aware of the factual circumstances concerning the nature of the hostilities. Likewise, in relation to crimes against humanity, the Appeals Chamber has said:

     Thus to convict an accused of crimes against humanity, it must be proved that the crimes were related to the attack on a civilian population (occurring during an armed conflict) and that the accused knew that his crimes were so related.²⁶⁰

     Applying similar reasoning to the context of grave breaches of the Geneva Conventions, the Prosecution has to show “that the accused knew that his crimes” had a nexus to an international armed conflict, or at least that he had knowledge of the factual circumstances later bringing the Judges to the conclusion that the armed conflict was an international one.

119. This aspect of the mens rea requirement for Article 2 crimes does not require that a perpetrator correctly subsume facts known to him during the commission of the crime into a particular legal characterization. This is the task of the judge (iura novit curia). The perpetrator only needs to be aware of factual circumstances on which the judge finally determines the existence of the armed conflict and the international (or internal) character thereof. It is a general principle of criminal law that the correct legal classification of a conduct by the perpetrator is not required.²⁶¹ The principle of individual guilt, however, demands sufficient awareness of factual circumstances establishing the armed conflict and its (international or internal) character.

120. This thinking arguably also underlies the position adopted by the Preparatory Commission of the International Criminal Court, which spoke of the duty to show that the “perpetrator was aware of factual circumstances that established the existence of an armed conflict”.²⁶² It is true that the Commission ultimately decided not to require knowledge of the international character of the “international armed conflict”. Nonetheless, the history of its negotiations is instructive as to the pre-existing state of customary international law. The question as to what extent the existence of an armed conflict and its nature should be reflected in the mens rea of the accused proved highly controversial.²⁶³ Consequently, if the issue could not be clearly answered even in 1998 and lacking any indications to the contrary, the existence of an armed conflict or its character has to be regarded, in accordance with the principle of in dubio pro reo, as ordinary elements of a crime under customary international law when applying Articles 2 and 3 of the Statute to the conduct at issue in this case. Again, this result is rooted in the inalienable principle of individual guilt.

121. Consequently, the Appeals Chamber finds that the principle of individual guilt requires that the accused’s awareness of factual circumstances establishing the armed conflict’s international character must be proven by the Prosecution.²⁶⁴ The Trial Chamber erred in law in failing to so find explicitly.

122. However, the Appeals Chamber finds that this error did not affect the Trial Judgement. Based on the entirety of the findings contained in the Trial Judgement and partially discussed elsewhere in this Appeal Judgement, a reasonable trier of fact could only have found that Naletilic and Martinovic were aware of the factual circumstances based on which the Trial Chamber held that the armed conflict was international in character.²⁶⁵ For example, in light of the Trial Chamber’s findings concerning Naletilic’s and Martinovic’s status as military commanders and their active involvement in the conflict in the Mostar area,²⁶⁶ it would not have been reasonable to conclude that they were unaware of the participation of Croatian troops in that conflict.²⁶⁷
     V. GROUNDS OF APPEAL OF THE PROSECUTION
     A. Alleged error relating to persecutions (first ground of appeal)
     1. Arguments of the Parties

123. As its first ground of appeal, the Prosecution contends that the Trial Chamber erred in law and in fact in holding that certain crimes found to have been committed by Martinovic did not constitute underlying acts of persecutions due to insufficient evidence that they were committed on racial, political or religious grounds.²⁶⁸ The Prosecution asserts that the only reasonable conclusion that could result from a correct application of the legal principles relating to the evaluation of evidence is that these crimes were carried out on requisite discriminatory grounds, thus they were underlying acts of persecutions.²⁶⁹

124. The Prosecution raises a number of instances in which it considers that the Trial Chamber adopted an incorrect approach in law to the evaluation of the evidence. However, it states that it is bringing this ground of appeal “primarily in order to seek a pronouncement by the Appeals Chamber on the correct legal approach to the evaluation of evidence of discriminatory intent in charges of persecutions”.²⁷⁰ As such, “in the interests of judicial economy and of not unduly protracting these appellate proceedings”, it does not appeal all the instances in which it considers the Trial Chamber to have erred.²⁷¹ Rather, it confines itself to three specific occasions, namely:
     1. the beatings by Martinovic of BH Muslim detainees at his headquarters and at the frontline on the Bulevar, referred to in paragraph 677 of the Trial Judgement;
     2. the crimes of unlawful labour, inhumane acts, inhumane treatment and cruel treatment as a result of the use of prisoners of war for unlawful labour in the area of responsibility of Vinko Skrobo ATG, referred to in paragraph 692 of the Trial Judgement;
     3. the crimes of unlawful labour, inhumane acts, inhumane treatment and cruel treatment as a result of the incident involving the use of prisoners carrying wooden rifles across the confrontation line on 17 September 1993 as referred to in paragraph 693 of the Trial Judgement.²⁷²

125. The Prosecution submits that the Appeals Chamber should revise Martinovic’s conviction under Count 1 for persecutions to include these three underlying crimes. It argues that these additional convictions for persecutions should entail an increase in the length of his sentence, albeit an insignificant one in light of the number of crimes for which he has already been convicted.²⁷³

126. The Prosecution contends that when an individual is charged with persecutions, “the question whether the relevant discriminatory intent has been established must be determined in the light of all the relevant evidence in the case as a whole.”²⁷⁴ It argues that:
     1. where there is a widespread or systematic attack that has a discriminatory aim such that the victims are targeted on relevant discriminatory grounds (in this case, an attack against BH Muslims with the aim of transforming the area into territory populated by an ethnically pure BH Croat population);
     2. where a person accused of persecutions is a participant in that widespread or systematic attack and commits the relevant crime during the course of that widespread or systematic attack;
     3. where the victim of that crime is a person falling within the class that is the target of the widespread or systematic attack;²⁷⁵ and
     4. where the crime is an act of the type being committed as part of or in furtherance of that widespread or systematic attack;

     the only reasonable conclusion is that the crime “was committed as part of that widespread or systematic attack, and was committed on the discriminatory grounds of the attack, unless there is some specific evidence that indicates that the crime was committed on some other specific ground.”²⁷⁶ The Prosecution contends that, in determining whether the required discriminatory grounds had been established, the Trial Chamber implicitly confined itself to an examination of the evidence relating to the specific incident in question and did not consider whether the discriminatory grounds could be inferred from the context of the incident or the evidence as a whole.²⁷⁷

127. According to Martinovic, the jurisprudence of the International Tribunal requires that discriminatory intent be specifically proven with respect to each individual persecutory act.²⁷⁸ He contends that the Prosecution’s approach would shift the burden of proof on the discriminatory intent issue to the accused, in violation of Article 21(3) of the Statute.²⁷⁹ In reply, the Prosecution contests Martinovic’s interpretation of the case law, and claims that its position would not shift the burden of proof, but would rather allow the Trial Chamber to make permissible inferences from the evidence.²⁸⁰
     2. Precise errors alleged

128. The Appeals Chamber notes that the Prosecution in its Appeal Brief is challenging not the factual findings of the Trial Chamber themselves, but the inferences to be drawn from them. That is, in its Appeal Brief, the Prosecution is challenging the legal approach to the evaluation of the findings.²⁸¹ In the course of the Appeals Hearing, however, the Prosecution supplemented these arguments alleging an error of law with arguments alleging that, in an instance which is analysed below, the Trial Chamber erred in fact.²⁸² As far as the latter arguments are concerned, the Appeals Chamber will analyse whether the conclusion challenged is one which no reasonable trier of fact could have reached.

129. Insofar as the Prosecution’s submission concerns a legal issue, the Appeals Chamber considers the law in this area to be clear. As it stated in the case of Kvocka et al., “the discriminatory intent of crimes cannot be inferred directly from the general discriminatory nature of an attack characterised as a crime against humanity. However, the discriminatory intent may be inferred from the context of the attack, provided it is substantiated by the surrounding circumstances of the crime.”²⁸³ According to the Krnojelac Appeal Judgement, such circumstances include the operation of a prison, in particular the systematic nature of crimes committed against a particular group within the prison, and the general attitude of the alleged perpetrator as seen through his behaviour.²⁸⁴

130. The Appeals Chamber has had occasion to apply this approach in a number of cases. According to the Appeals Chamber in the case of Kordic and Cerkez, in the situation in which all the guards belong to one ethnic group and all the prisoners to another, it could reasonably be inferred that the latter group was being discriminated against.²⁸⁵ In the Kvocka et al. Appeal Judgement, the Appeals Chamber stated that since almost all the detainees in the camp belonged to the non-Serb group, it could reasonably be concluded that the reason for their detention was membership of that group and that the detention was therefore of a discriminatory character.²⁸⁶

131. Thus, provided that it is substantiated by the circumstances surrounding the acts allegedly underlying the crime of persecutions, the discriminatory intent may be inferred from the context of the attack.
     3. Specific findings challenged

132. The Trial Chamber found that Martinovic mistreated BH Muslim civilians in the process of their eviction and that he beat BH Muslim prisoners in the area under his command.²⁸⁷ For the beatings of BH Muslim prisoners in the area under his command, the Trial Chamber found Martinovic responsible pursuant to Articles 2(c), 3 and 7(1) of the Statute.²⁸⁸ The Trial Chamber found that the mistreatment of BH Muslim civilians during their eviction constituted an underlying act of persecutions under Article 5(h) of the Statute but that evidence had not been led to show that the beatings of BH Muslim prisoners in Martinovic’s area of command were carried out on discriminatory grounds. Instead, according to the Trial Chamber, the evidence reflected that the beatings in Martinovic’s area of command “occurred randomly and without a specific religious, political or racial background”.²⁸⁹ The Appeals Chamber notes that the Trial Chamber did not refer to any specific piece of evidence in coming to its conclusion. Previously, the Trial Chamber had held that it was satisfied that Martinovic repeatedly beat BH Muslim detainees at his headquarters and at the frontline on the Bulevar,²⁹⁰ and that the individuals beaten at Martinovic’s headquarters were transported from the Heliodrom.²⁹¹ With respect to the beatings in Martinovic’s area of command, the Appeals Chamber recalls that the findings that Martinovic was responsible for the incidents involving several prisoners in July and August 1993 and involving a prisoner called “Tsotsa” have been set aside as a result of defects in the Indictment.²⁹² For this reason, in addressing the Prosecution’s arguments the Appeals Chamber has confined itself to the incident of beating involving a prisoner called the “Professor ”. As concerns this incident, the Appeals Chamber notes that the “Professor” was brought from the Heliodrom²⁹³ to work in Martinovic’s area of command.²⁹⁴

133. Next, the Trial Chamber found Martinovic responsible for unlawful labour under Article 3 of the Statute and for inhumane acts, inhuman treatment and cruel treatment under Articles 5(i), 2(b) and 3 of the Statute for the labour of prisoners of war in the area of responsibility of the Vinko Skrobo ATG.²⁹⁵ It did not find Martinovic responsible for persecutions under Article 5(h) of the Statute in light of insufficient evidence to conclude that the prisoners were taken to perform labour on the basis of one of the required discriminatory grounds.²⁹⁶ Rather, it found that the prisoners were used because Martinovic would have used the enemy rather than his own soldiers to perform dangerous tasks.²⁹⁷ Prior to this, the Trial Chamber had noted that Martinovic did not contest that prisoners of war detained at the Heliodrom were regularly sent to work for the Vinko Skrobo ATG, and found that detainees were selected by the Vinko Skrobo ATG from the Heliodrom to work in that unit.²⁹⁸

134. Finally, for the use of prisoners of war carrying wooden rifles across the confrontation line on 17 September 1993, the Trial Chamber found Martinovic responsible for unlawful labour under Article 3 of the Statute and inhumane acts, inhuman treatment and cruel treatment under Articles 5(i), 2(b) and 3 of the Statute.²⁹⁹ It did not find Martinovic responsible for persecutions under Article 5(h) of the Statute for the reason that no evidence was introduced regarding the grounds upon which the four prisoners involved were selected.³⁰⁰ The Trial Chamber had previously found that:

     In the morning of 17 September 1993, Dinko Kne`ovic came to fetch approximately 30 prisoners from the Heliodrom to take them to the headquarters of the Vinko Skrobo ATG. Upon their arrival, Vinko Martinovic ordered Ernest Takac to select four prisoners, who were taken down to the basement of the headquarters. There, Stela ordered them to wear camouflage uniforms. The prisoners also received wooden rifles.³⁰¹

135. For all three incidents the Prosecution argues that, in finding that there was insufficient or no evidence that they wer