1 Wednesday, 9 May 2007

2 [Appeals Judgement]

3 [The accused entered court]

4 --- Upon commencing at 11.00 a.m.

5 JUDGE POCAR: I would like to begin by saying good morning to

6 Mr. Blagojevic and Mr. Jokic, to Counsel for the Prosecution and the

7 Defence, the interpreters, and the staff from the Court Management Support

8 Section.

9 Mr. Registrar, could you please call the case.

10 THE REGISTRAR: Thank you and good morning, Your Honours. This is

11 case number IT-02-60-A, the Prosecutor versus Vidoje Blagojevic and Dragan

12 Jokic.

13 JUDGE POCAR: Thank you.

14 Mr. Blagojevic, can you clearly hear and understand the

15 translation?

16 THE ACCUSED BLAGOJEVIC: [Interpretation] Yes, I can hear it for

17 the time being.

18 JUDGE POCAR: Thank you. Mr. Jokic, can you hear and understand

19 the translation?

20 THE ACCUSED JOKIC: [Interpretation] Yes, Your Honour, I can hear

21 and understand you in my native language.

22 JUDGE POCAR: I would now ask for the appearances of the parties.

23 First, the Defence of Mr. Blagojevic.

24 MR. DOMAZET: [Interpretation] Your Honours, my name is Vladimir

25 Domazet. I'm counsel for Mr. Blagojevic.

1 JUDGE POCAR: Thank you. And I will call on the Defence of

2 Mr. Jokic.

3 MR. MURPHY: Good morning, Your Honours. Good morning, counsel.

4 My name is Peter Murphy. I represent Mr. Dragan Jokic.

5 JUDGE POCAR: Now, the counsel for the Prosecution.

6 MR. FARRELL: Good morning, Your Honours. Good morning to my

7 learned colleagues. Norman Farrell appearing for the Prosecution, and

8 with me as co-counsel, Ms. Antoinette Issa, Maria-Ursula Kind, Matteo

9 Costi, and our case manager is Ms. Lourdes Galicia.

10 JUDGE POCAR: [Microphone not activated]

11 THE INTERPRETER: Microphone, please.

12 JUDGE POCAR: Sorry.

13 In accordance with the Scheduling Order issued on 24 April 2007,

14 the Appeals Chamber will deliver its Judgement today.

15 Following the practice of the International Tribunal, I will not

16 read out the text of the judgement, except for the disposition. Instead,

17 I will summarise the issues raised in this appeal and the findings of the

18 Appeals Chamber.

19 I emphasise that the summary is not part of the written Judgement,

20 which is the only authoritative account of the Appeals Chamber's reasons

21 and rulings. Copies of the Judgement will be made available to the

22 parties at the conclusion of this hearing.

23 The events giving rise to these appeals took place in the

24 immediate aftermath of the takeover of the Srebrenica safe area by the

25 Army of Republika Srpska, which I will subsequently refer to as "VRS."

1 Srebrenica, a predominantly Muslim municipality before the war, is in

2 Eastern Bosnia and Herzegovina near the border with Serbia.

3 On 16 April 1993, the United Nations Security Council declared it

4 a safe area which should be free from any armed attack or any other

5 hostile act. Between 6 and 11 July 1995, the VRS attacked and gained

6 control of Srebrenica. In the following days, various elements of the VRS

7 detained and killed thousands of Bosnian-Muslim men while transporting the

8 women, children, and elderly out of Srebrenica on buses. This case has

9 focused primarily on the role played in these events by the Bratunac and

10 Zvornik Brigades of the Drina Corps of the VRS and, in particular, by two

11 of their respective officers at the time, Colonel Vidoje Blagojevic and

12 General Jokic.

13 Colonel Blagojevic commanded the Bratunac Brigade in July 1995.

14 Based on his actions and as well as those of the Bratunac Brigade in the

15 events following the fall of Srebrenica, the Trial Chamber convicted

16 Mr. Blagojevic under Article 7(1) of the Statute for complicity in

17 genocide, Count 1(b); aiding and abetting murder as a violation of the

18 laws or customs of war, Count 4; and aiding and abetting murder, Count 3;

19 persecutions, Count 5; and other inhuman acts, forcible transfer, Count 6,

20 as crimes against humanity. The Trial Chamber sentenced Mr. Blagojevic to

21 a single sentence of imprisonment for 18 years.

22 Mr. Dragan Jokic held the position of Chief of Engineering of the

23 Zvornik Brigade in July 1995 with the rank of major. Based on his

24 actions, as well as those of the Zvornik Brigade, in the events following

25 the fall of Srebrenica, the Trial Chamber convicted Mr. Jokic under

1 Article 7(1) of the Statute for aiding and abetting murder as a violation

2 of the laws and customs of war, Count 4; and of aiding and abetting

3 extermination, Count 2; and persecutions through murder, Count 5, as

4 crimes against humanity. The Trial Chamber sentenced Mr. Jokic to a

5 single sentence of imprisonment for nine years.

6 I will now address the grounds of appeal in turn, beginning with

7 Mr. Blagojevic, who brings eight grounds of appeal. I will then address

8 Mr. Jokic's seven grounds and appeal; and, finally, the Prosecution's

9 ground of appeal concerning the corroboration of testimony under Rule 92

10 bis(D), followed its ground of appeal in relation to Mr. Blagojevic and

11 Mr. Jokic.

12 Lastly, I will address the Prosecution's ground of appeal on

13 sentencing in relation to both accused and the impact of the Appeals

14 Chamber's finding on sentencing, which will be followed by a reading of

15 the disposition of the Judgement.

16 In Ground 1, Mr. Blagojevic alleges that his trial was not fair

17 because he was denied the right to counsel of his choice, the right to

18 competent counsel, and the right to appear as a witness in his own trial.

19 He requests the Appeal Chamber to grant him a new trial to rectify these

20 alleged violations. The origin of these complaints involves a dispute

21 between Mr. Blagojevic and his assigned counsel, which led to a breakdown

22 in trust and communication.

23 The Appeals Chamber considered many of the issues raised by

24 Mr. Blagojevic on the composition and competence of his Defence team when

25 it is missed his interlocutory appeal at the outset of trial. Therefore,

1 in assessing the violations under this ground of appeal, the Appeals

2 Chamber focuses primarily on events following its interlocutory appeal

3 decision that either would call into question the basis of the decision or

4 that might constitute previously unconsidered violations.

5 With respect to the right to choose counsel, the Appeals Chamber

6 recalls that once counsel has been properly assigned, as was done here,

7 counsel has a professional obligation to continue representing the accused

8 and may only be withdrawn or replaced if sufficient cause exists. Mr.

9 Blagojevic argues sufficient cause on the basis of his claim that his

10 counsel falsely accused him of trying to engage in fee-splitting, thereby

11 destroying all possibility of re-establishing any form of cooperation

12 between them. The Appeals Chamber, however, noted that the assigned

13 counsel did not breach any client confidence by raising the issue of

14 fee-splitting and determined that this issue should not unduly impact the

15 relationship. Moreover, while Mr. Blagojevic seeks to reopen the issues

16 considered and decided in the interlocutory appeal by arguing that the

17 Appeals Chamber and Trial Chamber failed to appreciate that the breakdown

18 of his relationship with his counsel would last throughout the trial, his

19 submissions before trial clearly indicated that he considered the

20 breakdown irreparable.

21 The Appeals Chamber considers that an appellant cannot premise a

22 request for a new trial on a claim of a total breakdown in communication

23 in circumstances where the appellant unjustifiably refused to cooperate

24 with his or her assigned counsel throughout the trial proceedings.

25 With respect to the competence of counsel, the Appeals Chamber recalls

1 that an assigned counsel is presumed to be competent and that such a

2 presumption can only be rebutted by evidence to the contrary. In his

3 submissions, Mr. Blagojevic simply disagrees or complains about decisions

4 made by his counsel. Moreover, Mr. Blagojevic complains about his

5 counsel's performance during trial stem from his refusal to communicate

6 with his counsel and instruct his Defence team. The Appeals Chamber

7 considers that this is not an acceptable basis for challenging counsel's

8 conduct.

9 Lastly, Blagojevic submits that the Trial Chamber denied him the

10 right to appear as a witness by requiring that he be examined by his

11 assigned counsel if he wished to testify in his defence. The Appeals

12 Chamber has previously confirmed that an accused has a right to appear as

13 a witness in his defence. The Appeals Chamber equally determined that

14 this right does not prevent a Trial Chamber from exercising its authority

15 to control the conduct of a trial by imposing conditions on the

16 appearance, provided these conditions do not unreasonably interfere with

17 the right to testify. The Appeals Chamber is not satisfied, in the

18 circumstances, that the conditions placed by the Trial Chamber on Mr.

19 Blagojevic's rights to testify in his own behalf, namely, that his counsel

20 conducted the examination and so unreasonably interfered with his rights

21 to testify that his right for a fair trial was infringed. Accordingly,

22 the Appeals Chamber dismisses this ground of appeal. Judge Shahabuddeen

23 dissents on the ground that Mr. Blagojevic was denied the right to a fair

24 trial and considers that his case should be remanded for a new trial.

25 Under Ground 2, Mr. Blagojevic submits that the Trial Chamber

1 committed several errors of fact resulting in his convictions. Mr.

2 Blagojevic specifically submits that the Trial Chamber erred in finding

3 that the Bratunac Brigade played a role in blocking humanitarian convoys

4 bound for Srebrenica, erred in characterising the attack against

5 Srebrenica as an illegitimate attack directed at the civilian population,

6 as well as in its finding on the role of Mr. Blagojevic and the Bratunac

7 Brigade played in the attack, erred in finding that the Bratunac Brigade

8 fired on Srebrenica during the period before and after the fall of the

9 enclave on 11 July 1995, erred in connecting Mr. Blagojevic and the

10 Bratunac Brigade to the removal of civilians from Potocari, erred in

11 finding that the Bratunac Brigade played a role in an attack on a column

12 of mostly Bosnian Muslim men and boys fleeing Srebrenica, erred in its

13 finding that Mr. Blagojevic had knowledge of and contributed to the

14 detention, mistreatment, and murder of Bosnian Muslim men in and around

15 the Vuk Karadzic School in Bratunac town, erred in its evaluation of the

16 testimonies of Momir Nikolic and Dragan Obrenovic, erred in the fact in

17 finding Mr. Blagojevic remained in command and control of all units of the

18 Bratunac Brigade including Momir Nikolic and the brigade's military

19 police, and finally erred in finding that the Bratunac Brigade had a

20 specific geographic zone of responsibility. For the reasons provided in

21 the Judgement, the Appeals Chamber finds the second ground of Blagojevic's

22 appeal unfounded, and therefore dismisses it in its entirety, Judge

23 Shahabuddeen dissenting.

24 Let me come to Ground 3, alleged error relating to murder. In

25 that ground, Mr. Blagojevic further challenges the Trial Chamber's finding

1 for its conviction for aiding and abetting murder as a crime against

2 humanity and as a violation of the laws of and customs of war based on the

3 killing of more than 50 Bosnian Muslim men in and around the Vuk Karadzic

4 in Bratunac town. In addition, for allegations raised under Ground 2, Mr.

5 Blagojevic further claims that the Trial Chamber erred in fact in its

6 estimation of the number of murder victims and in finding that these

7 crimes form part of a widespread systematic attack against a civilian

8 population and his knowledge thereof.

9 In the view of the Appeals Chamber, Mr. Blagojevic has not

10 demonstrated that no reasonable trier of fact could have made the Trial

11 Chamber's finding on the number of victims murdered. Furthermore, the

12 Appeals Chamber addressed and rejected under Ground 2 portions of Mr.

13 Blagojevic's argument related to the legitimacy of the attack against

14 Srebrenica and the role of the Bratunac Brigade in it. Mr. Blagojevic

15 fails to address the main aspect of the Trial Chamber's findings on the

16 nature of the attack, which concerns the resulting impact on the civilian

17 population after the fall of the enclave on 11 July 1995.

18 Mr. Blagojevic's simple denial that he lacked knowledge of the context in

19 which the attack occurred is insufficient to call into question the

20 reasonableness of the Trial Chamber's finding on this point. Accordingly,

21 the Appeal Chamber dismisses his third ground of appeal, Judge

22 Shahabuddeen dissenting.

23 Under his fourth ground of appeal, Mr. Blagojevic challenges his

24 convictions for aiding and abetting in human acts and persecutions as

25 crimes against humanity based on the finding of his responsibility for the

1 forcible transfer of thousands of Bosnian Muslims from Srebrenica. He

2 submits that the Trial Chamber erred in fact in finding that the forcible

3 transfer occurred and that he contributed to and had knowledge of it.

4 In light of the circumstances taken into account by the Trial

5 Chamber, it was reasonable for it to find that the request on the part of

6 the Bosnian Muslims to leave Srebrenica was not the result of a genuine

7 choice, but rather stemmed from the coercive circumstances in which they

8 found themselves and the humanitarian disaster caused by what the Trial

9 Chamber described as the VRS unlawful activity. Mr. Blagojevic's

10 arguments on this point do not demonstrate that no reasonable trier of

11 fact could have found that the transfer of Bosnian Muslims from Srebrenica

12 was forcible.

13 Mr. Blagojevic further disputes that he contributed to or had any

14 knowledge of the forcible transfer. Under this ground, Mr. Blagojevic

15 points to no error in the assessment of the relevant evidence, and the

16 Appeals Chamber has addressed and rejected his challenges to the findings

17 on his presence in Bratunac town elsewhere in the Judgement.

18 Consequently, in the Appeals Chamber's view, Mr. Blagojevic has failed to

19 demonstrate that no reasonable trier of fact could have found that he had

20 knowledge of the forcible transfer. The Appeals Chamber accordingly

21 dismisses the fourth ground of appeal, Judge Shahabuddeen dissenting.

22 Mr. Blagojevic's fifth ground of appeal relates to his conviction

23 for aiding and abetting persecutions as a crime against humanity through

24 murder, cruel and inhuman treatment, terrorizing of Bosnian Muslim

25 civilians in Srebrenica and Potocari, and through the forcible transfer of

1 Bosnian Muslims from the Srebrenica enclave. Mr. Blagojevic submits that

2 the Trial Chamber erred in fact in finding that he was aware of the

3 discriminatory intent of the perpetrators as well as the discriminatory

4 context in which the underlying crimes were committed. The Appeals

5 Chamber has already addressed and rejected Mr. Blagojevic's arguments

6 disputing the Trial Chamber's characterisation of the nature and purpose

7 of the attack against the civilian population of Srebrenica under other

8 grounds of his appeal.

9 Mr. Blagojevic further fails to address the majority of the

10 evidence relied on by the Trial Chamber in determining that the attack

11 against the civilian population of Srebrenica was discriminatory in

12 nature, beyond disagreeing with the conclusion reached from it, nor does

13 he support his arguments with any relevant reference to the trial record.

14 Accordingly, the Appeals Chamber dismisses this ground of appeal, Judge

15 Shahabuddeen dissenting.

16 I come to the sixth ground of appeal. The Trial Chamber convicted

17 Mr. Blagojevic for complicity in genocide as an aider and abettor. Mr.

18 Blagojevic submits that the Trial Chamber erred in fact in finding that he

19 had knowledge of the commission of the crime of genocide or genocidal

20 intent of the principal perpetrators. In disputing his awareness of the

21 commission of genocide and of the genocidal intent of the principal

22 perpetrators, Mr. Blagojevic points to the Trial Chamber's finding that he

23 lacked knowledge about the mass killings, which the Trial Chamber

24 determined to form part of the genocide. The Prosecution response that

25 the fact that Mr. Blagojevic was unaware of the mass killings is

1 irrelevant to his liability as an aider and abettor of the crime of

2 genocide.

3 The Appeals Chamber accepts that the forcible transfer operation,

4 the separation, and the mistreatment and murders in Bratunac town are

5 relevant in considerations in accessing whether the principal perpetrators

6 had genocidal intent. However, the Appeals Chamber is not convinced by

7 the Trial Chamber's reasoning that the forcible transfer operation alone

8 or coupled with the murders and mistreatment in Bratunac town would

9 suffice to demonstrate the principal perpetrator's intent to destroy the

10 protected group.

11 The Krstic Appeal Judgement clearly held that forcible transfer

12 does not constitute, in and of itself, a genocidal act, and it is simply a

13 relevant consideration as part of the overall factual assessment.

14 Similarly, the Appeals Chamber notes that opportunistic killings, by their

15 very nature, provide a very limited basis for inferring genocidal intent.

16 In the view of the Appeals Chamber, no reasonable trier of fact could find

17 beyond a reasonable doubt that without knowledge of the mass killings, Mr.

18 Blagojevic's awareness of the other facts related to a forcible transfer

19 operation shows that he had knowledge of the principal perpetrator's

20 genocidal intent.

21 On the basis of the foregoing, the Appeals Chamber grants Mr.

22 Blagojevic's sixth ground of appeal and reverses his conviction for

23 complicity in genocide.

24 Ground 7. Under this ground of appeal, Mr. Blagojevic raises four

25 errors of law and fact in connection with his conviction for aiding and

1 abetting, including an alleged legal error in the definition of"aiding and

2 abetting" and alleged factual errors related to his knowledge of the

3 underlying crimes, whether he made Bratunac Brigade resources available

4 and whether these constituted substantial assistance.

5 The Appeals Chamber considers that Mr. Blagojevic has failed to

6 identify any legal error on the part of the Trial Chamber in setting forth

7 the applicable law on aiding and abetting. Further, with regard to his

8 knowledge of the underlying crimes, Mr. Blagojevic simply incorporates by

9 reference arguments advanced elsewhere in his appeal, which the Appeals

10 Chamber has addressed and rejected, with the exception of his challenge to

11 his conviction for complicity in genocide. As complained in the

12 Judgement, Mr. Blagojevic's submissions are insufficient to call into

13 connection the reasonableness of the Trial Chamber's findings that he

14 permitted Bratunac Brigade resources to facilitate the commission of the

15 crimes. Furthermore, Mr. Blagojevic has not demonstrated error in the

16 Trial Chamber's finding that the Bratunac Brigade substantially

17 contributed to the commission of the crimes.

18 In making its findings, the Trial Chamber was aware of the more

19 limited scope of assistance provided by the Bratunac Brigade in relation

20 to other elements of the VRS and civilian authorities. Nonetheless, the

21 Trial Chamber described the contribution of the resources made available

22 by Mr. Blagojevic as practical assistance to the crimes, which had a

23 substantial effect on the commission of the crimes themselves. The

24 Appeals Chamber recalls that in a similar context, it reached the same

25 conclusion in the Krstic Appeal Judgement.

1 For the reasons given in connection with the sixth ground of

2 appeal, the Appeals Chamber grants Mr. Blagojevic's seventh ground of

3 appeal with respect to the crime of genocide and dismisses his appeal

4 against the Trial Chamber findings relating to aiding and abetting in all

5 other respects. Judge Shahabuddeen dissents.

6 In its eighth ground of appeal, Mr. Blagojevic submits that the

7 Trial Chamber erred in law in assessing the aggravating and mitigating

8 factors in assessing his sentence. He contends that the Trial Chamber's

9 emphasis on the gravity of the discriminatory nature of the crime of

10 persecutions reflects that it impermissibly aggravated his sentence based

11 on a factor that is also an element of the crime. Mr. Blagojevic also

12 submits that the Trial Chamber did not properly take into account that he

13 was not among the major participants in the crimes. The Appeals Chamber,

14 however, notes that the Trial Chamber considered Mr. Blagojevic's

15 knowledge and the form of assistance he provided to the principal

16 perpetrators in determining his sentence. The Appeals Chamber finds that

17 Mr. Blagojevic has not pointed to any discernible error on the part of the

18 Trial Chamber in determining his sentence. Accordingly, the Appeal

19 Chamber dismisses this ground of appeal in its entirety. Judge

20 Shahabuddeen dissenting.

21 I come now to the appeal of Dragan Jokic.

22 Mr. Jokic submits, under his first and second grounds of appeal,

23 that the Trial Chamber erred when it found that he acted with requisite

24 mens rea in relation to the killings at Orahovac, Pilica School, and

25 Branjevo Military Farm. In particular, Mr. Jokic submits that the Trial

1 Chamber erred in fact in finding that he was aware of the impending

2 executions of detainees at these sites. For the reasons provided in the

3 Judgement, the Appeals Chamber finds Mr. Jokic's first and second grounds

4 of appeal unfounded and therefore dismisses them in their entirety.

5 Under his fourth ground, Mr. Jokic submits that the Trial Chamber

6 erred by convicting him as an aider and abettor when the evidence against

7 him clearly shows that his conduct was confined to ex post facto

8 assistance. This ground turns on Mr. Jokic's apparent assumption that the

9 Trial Chamber had before it no evidence on which it could reasonably

10 conclude that he provided ex ante or contemporaneous assistance to the

11 mass killings at Pilica School, Branjevo Military Farm, and Kozluk. That,

12 however, is not the case. The Appeals Chamber considers the Trial Chamber

13 to have reasonably concluded that Mr. Jokic was integrally involved in the

14 operation spanning the mass killings sites. Accordingly, the Appeals

15 Chamber dismisses this ground of appeal.

16 Under his third ground of appeal, Mr. Jokic submits that the Trial

17 Chamber erred in law by holding that his acts, as found, constituted the

18 actus reus of aiding and abetting. Mr. Jokic posits as a legal element of

19 the actus reus of aiding and abetting, that the practical assistance given

20 to the perpetrators, in addition to having a substantial effect on the

21 commission of the crime, must be specifically or sufficiently directed to

22 this end. In relation to the incidents which took place at the mass

23 execution sites, Mr. Jokic argues that any assistance the principal

24 perpetrators may have derived from his ordering a particular member from

25 the Zvornik Brigade Engineering Company to go with equipment to a

1 particular place at a particular time was too remote or insubstantial to

2 have had a substantial effect on the commission of the crime.

3 The Appeals Chamber observes that the finding of specific

4 direction will often be implicit in the finding that the accused has

5 provided practical assistance to the principal perpetrator which had a

6 substantial effect on the commission of the crime. The Appeals Chamber

7 considers that it was reasonable for the Trial Chamber to conclude that

8 the assistance Mr. Jokic provided in his capacity as Chief of Engineering

9 in deploying engineering machinery and personnel for the burial operation

10 at Orahovac, Pilica, Branjevo Military Farm, and Kozluk had a substantial

11 effect on the execution of the mass executions at these three sites.

12 Assisting the organiser of the mass executions with the disposal of the

13 victims was substantial to the achievement of the burial operation.

14 Accordingly, the Appeals Chamber dismisses this ground of appeal.

15 Under his fifth ground of appeal, Mr. Jokic submits that the Trial

16 Chamber erred by convicting him when the evidence against him clearly

17 showed that there was an equally probable explanation for his acts and

18 omissions that was consistent with innocence, that it was in the interests

19 of public health that the bodies of the victims be buried without delay.

20 The Trial Chamber found and the Appeals Chamber confirmed that

21 Mr. Jokic substantially contributed to the mass executions when he sent

22 engineering equipment to the execution sites and that he did this knowing

23 that the equipment would be used to dig mass graves for the victims. Even

24 if Mr. Jokic were concerned about public safety and health, this would not

25 change the fact that his actions substantially contributed to the crimes

1 or the conclusion that he did so with knowledge that his actions would

2 assist the organiser of the murder campaign. Ground 5 is accordingly

3 dismissed.

4 Mr. Jokic submits, under Ground 6, that the Trial Chamber erred

5 when it found that he was present at the duty officer's station in the

6 early hours of 15 July 1995 when officers of the Zvornik Brigade returned

7 from Orahovac and celebrated their successful mission. In light of its

8 previous findings, the Appeals Chamber considers that the question of

9 Mr. Jokic's presence at the station is immaterial.

10 Mr. Jokic submits, under Ground 7, that the Trial Chamber erred

11 when it found that he was responsible for the provision of engineering

12 resources and personnel to the Pilica School burial site. In the view of

13 the Appeals Chamber, none of the evidence pointing to Mr. Jokic shows that

14 the Trial Chamber erred.

15 Both Grounds 6 and 7 are accordingly dismissed.

16 I will now turn to the appeal of the Prosecution.

17 The Prosecution brings three grounds of appeal in relation to

18 Mr. Blagojevic, one ground in relation to Mr. Jokic, as well as an

19 additional ground challenging their respective sentences. In addition,

20 the Prosecution brings a ground of appeal relating to the use of

21 transcript evidence admitted pursuant to Rule 92 bis(D). The Prosecution

22 submits that the Trial Chamber erred by requiring that evidence admitted

23 under Rule 92 bis(D) of the Rules must be corroborated to be relied upon

24 to lead to a conviction. The Prosecution concedes this error does not

25 impact the verdict, but argues that it raises an issue significance to the

1 jurisprudence of the Tribunal and that, as such, should be considered on

2 appeal. As explained in the Judgement, however, the Prosecutor has not

3 made detailed submissions on the significance of this issue to the

4 jurisprudence of the International Tribunal, and the Appeals Chamber

5 declines to exercise its discretion to consider this ground of appeal.

6 Under Ground 1, the Prosecution alleges that the Trial Chamber

7 erred in finding Mr. Blagojevic did not have knowledge of the mass

8 killings between 12 and 14 July 1995 and consequently erred in finding he

9 lacked the requisite mens rea for aiding and abetting these crimes.

10 First, the Prosecution submits that the Trial Chamber erred by not

11 applying the correct definition of the mens rea for aiding and abetting.

12 Second, according to the Prosecution, the Trial Chamber erred in its

13 application of the standard of proof beyond reasonable doubt. Third, the

14 Prosecution contests a number of factual findings and alleges that no

15 reasonable Trial Chamber could have concluded that Mr. Blagojevic did not

16 have knowledge of the mass killings.

17 The Appeals Chamber finds that the Trial Chamber did not decline

18 to find that Mr. Blagojevic knew about the mass killings operation because

19 he lacked certainty, but because it could not rule out the equally

20 reasonable inference that he thought that his acts were directed towards

21 another goal.

22 Secondly, the Appeals Chamber considers that the Prosecution has

23 not demonstrated that the Trial Chamber erred in its choice of method of

24 assessment of evidence or in its application of the standard of proof.

25 Thirdly, on the basis of the analysis provided in the Judgement,

1 the Appeals Chamber finds that the Prosecution has not established as

2 unreasonable the finding of Trial Chamber that there was sufficient on

3 which to find that Mr. Blagojevic had the requisite mens rea for aiding

4 and abetting murder in relation to the mass executions.

5 The Appeals Chamber accordingly dismisses the Prosecution's first

6 ground of appeal.

7 Under Ground 2, the Prosecution asserts that the Trial Chamber

8 erred in finding that Mr. Blagojevic did not have the requisite intent to

9 commit forcible transfer as a part of the joint criminal enterprise to

10 forcibly transfer the Bosnian Muslim population out of Srebrenica. The

11 Prosecution contends that if properly considered, the evidence and

12 findings as to Mr. Blagojevic's role in making life in the Srebrenica

13 enclave unbearable, as well as his participation in the Krivaja 1995

14 operation, knowing its stated purpose, lead to the only reasonable

15 conclusion that he shared the intent to commit forcible transfer.

16 The Trial Chamber concluded that Mr. Blagojevic was aware that

17 elements of the Bratunac Brigade were actively involved in sniping and

18 shelling the Srebrenica enclave, in checking humanitarian aid convoys with

19 the aim of blocking supplies to the Dutch Battalion of UNPROFOR, in making

20 life within the enclave impossible for civilians. However, while this

21 supports the Trial Chamber's finding that Mr. Blagojevic knew of the plan

22 to make life in the enclave unbearable, it does not necessarily

23 demonstrate that he supported it. Additionally, the Appeals Chamber

24 considers that while the Trial Chamber may have found tacitly that Mr.

25 Blagojevic intended some of the objectives of Krivaja 1995, it was

1 reasonable to conclude that he did not intend to commit forcible transfer.

2 Likewise, the Prosecution does not show how Mr. Blagojevic's

3 failure to try to provide humanitarian aid invariably demonstrates his

4 intent to commit forcible transfer, nor simply how the failure to provide

5 humanitarian aid to fleeing refugees furthered their forcible transfer.

6 Without such a showing, the Appeals Chamber will not set aside the Trial

7 Chamber's reason analysis. The Prosecution has not demonstrated that

8 Mr. Blagojevic's conduct and knowledge necessitated a finding that he

9 intended to commit forcible transfer. Accordingly, the Appeals Chamber

10 dismisses this ground of appeal.

11 Under Ground 3, the Prosecution submits that the Trial Chamber

12 erred in finding that Mr. Blagojevic was not responsible for the

13 participation of members of the Bratunac Brigade, including Momir Nikolic,

14 in the murder operation. The Prosecution divides its arguments into four

15 sub-grounds.

16 First, the Prosecution submits that the Trial Chamber erred in law

17 in holding that liability under Article 7(3) of the Statute may attach

18 only where the accused's subordinates have participated in a crime through

19 committing under Article 1 of the Statute.

20 Second, the Prosecution submits that the Trial Chamber erred in

21 law in finding that the superior cannot be liable under Article 7(3) of

22 the Statute for the acts of his subordinates when he does not know the

23 exact identity of the perpetrators of the crime.

24 Third, the Prosecution submits that because of these errors, the

25 Trial Chamber failed to consider the mens rea of members of the Bratunac

1 Brigade. As a result of this alleged error, the Prosecution submits that

2 the Trial Chamber failed to find that members of the Bratunac Brigade

3 aided and abetted the murder operation and failed to fully consider

4 Mr. Blagojevic's Article 7(3) liability.

5 Fourth, the Prosecution submits that the Trial Chamber erred in

6 finding that no superior-subordinate relationship existed between

7 Mr. Blagojevic and Momir Nikolic.

8 As a threshold matter, the Appeals Chamber confirms that superior

9 responsibility under Article 7(3) of the Statute encompasses all forms of

10 criminal conduct by subordinates, not only the committing of crimes in the

11 restrictive sense of the term, but all other modes of participation under

12 Article 7(1). However, the Appeals Chamber understands the Trial

13 Judgement as simply stating that it was not established that members of

14 the Bratunac Brigade "committed," in the broad sense of the word, any of

15 the crimes encompassed with the murder operation in which Mr. Blagojevic

16 was charged.

17 Secondly, the Appeals Chamber agrees that a superior need not

18 necessarily know the exact identity of his or her subordinates who

19 perpetrate crimes in order to incur liability under Article 7(3) of the

20 Statute. However, the Trial Chamber does not appear to refer, as the

21 Prosecution suggests, to a statement of law, but rather appears to refer

22 to its conclusion that it lacked sufficient evidence to find that one of

23 Mr. Blagojevic's subordinates committed, in the broad sense of the word,

24 one of the crimes encompassed in the murder operation. The Appeals

25 Chamber, therefore, does not find any legal error on the part of the Trial

1 Chamber in stating that it could not identify the specific perpetrators

2 whom Mr. Blagojevic had a duty to punish.

3 Thirdly, with regard to the Prosecution's submissions that the

4 Trial Chamber failed to consider the mens rea of Bratunac Brigade members

5 with respect to aiding and abetting the murder operation, the Appeals

6 Chamber is not convinced that it was not taken into account. Nonetheless,

7 for clarity, the Appeals Chamber addresses the Prosecution's specific

8 arguments regarding the mens rea of Bratunac Brigade soldiers in turn, and

9 for the reasons offered in the Judgement finds no error in the Trial

10 Chamber's finding that Mr. Blagojevic did not bear Article 7(3) liability

11 for the mass killings.

12 Lastly, the Appeals Chamber does not consider the conclusions

13 regarding the scope of Mr. Blagojevic's authority irreconcilable with the

14 finding that he did not exercise effective control over Momir Nikolic.

15 Accordingly, the Appeals Chamber dismisses this ground of appeal

16 in its entirety.

17 The Prosecution alleges, under Ground 4, that the Trial Chamber

18 erred in concluding that Mr. Jokic did not render substantial assistance

19 to the mass executions at the back of the Petkovci School and Dam. For

20 the reasons provided in the Judgement, the Appeals Chamber finds that the

21 Prosecution has not demonstrated that Mr. Jokic provided assistance that

22 had a substantial effect on the mass killings at the Petkovci School and

23 Dam either through his communications about the detainees or by sending

24 equipment there. Accordingly, the Appeals Chamber dismisses this ground

25 of appeal.

1 Turning to the Prosecution's submissions on sentencing, the

2 Prosecution alleges five errors in the Trial Chamber's determination of

3 Mr. Jokic sentence with respect to its consideration of the gravity of the

4 offence and forming the degree of Mr. Jokic's participation, its

5 consideration of certain mediating factors and in handing down a sentence

6 that it argues is manifestly inadequate.

7 For reasons given in the Judgement, the Appeals Chamber dismisses

8 the Prosecution's appeal against Mr. Jokic's sentence.

9 Turning to the Prosecution's sentencing submissions in respect to

10 Mr. Blagojevic, the Prosecution argues that the Trial Chamber erred in

11 assessing the aggravating and mitigating circumstances and in handing down

12 a sentence that is manifestly inadequate in comparison to others. First,

13 the Prosecution submits that the Trial Chamber erred by determining that

14 his position as a military leader was not an aggravating circumstance.

15 The Trial Chamber considered Mr. Blagojevic's position in his role as a

16 commander in the context of assessing any relevant aggravating

17 circumstances and determined that he did not warrant aggravation in the

18 circumstances of the case. Beyond disagreeing with this determination,

19 the Prosecution does not identify any discernible error in the exercise of

20 the Trial Chamber's sentencing discretion.

21 With regard to mitigating circumstances, the Appeals Chamber holds

22 that the Trial Chamber permissibly considered Mr. Blagojevic's

23 participation in de-mining activities under the broad category of

24 post-conflict conduct that goes to the character of the accused.

25 Finally, the Prosecution argues that Mr. Blagojevic's sentence is

1 inadequate in light of the magnitude of his crimes and in comparison to

2 other persons either found guilty of or who pled guilty to participation

3 in crimes that occurred in Srebrenica. For reasons given in the

4 Judgement, Mr. Blagojevic's criminal liability, however, is substantially

5 distinguishable.

6 I recall now that the Appeals Chamber has reversed

7 Mr. Blagojevic's conviction for complicity and genocide on the basis that

8 his knowledge of the forcible transfer operation, the separation, and the

9 mistreatment and murders in Bratunac town were insufficient without

10 knowledge of the mass killings to allow a reasonable trier of fact to find

11 the genocidal intent beyond reasonable doubt. The Appeals Chamber

12 considers, Judge Shahabuddeen dissenting, that in light of the

13 circumstances of this case, as well as the gravity of the crimes for which

14 Mr. Blagojevic is responsible, and taking into account the principal

15 proportionality that the sentence imposed by the Trial Chamber requires a

16 limited reduction.

17 I will now read out in full the operative paragraphs of the

18 Appeals Chamber's Judgement that is the disposition.

19 Mr. Blagojevic and Mr. Jokic, will you please stand. Here is the

20 disposition:

21 For the foregoing reasons, the Appeals Chamber, pursuant to

22 Article 25 of the Statute, and Rules 117 and 118 of the Rules, noting the

23 respective written submissions of the parties and the arguments they

24 presented at the hearings of 5 and 6 December 2006, sitting in open

25 session, allows Mr. Blagojevic's appeal in part with respect to Grounds 6

1 and 7; reverses his conviction for complicity in genocide, Count 1(B);

2 reduces the sentence of 18 years imprisonment imposed on Mr. Blagojevic by

3 the Trial Chamber to a sentence of 15 years imprisonment, subject to

4 credit being given under Rule 101(C) of the Rules for the period Mr.

5 Blagojevic has already spent in detention; and dismisses Mr. Blagojevic's

6 appeal in all other respects, Judge Shahabuddeen dissenting. It dismisses

7 Mr. Jokic's appeal in its entirety; dismisses the Prosecution's appeal in

8 its entirety; orders, in according to Rule 103(C) and Rule 107 of the

9 Rules that Mr. Blagojevic and Mr. Jokic are to remain in the custody of

10 the International Tribunal pending the finalisation of arrangements for

11 their transfer to the state in which their sentences will be served.

12 Mr. Blagojevic and Mr. Jokic, you may be seated.

13 I now request the registrar to please deliver copies of the

14 Judgement to the parties in this case.

15 Thank you, Mr. Registrar.

16 The Appeals Chamber will now rise.

17 THE ACCUSED BLAGOJEVIC: [Interpretation] This is unheard of. You

18 are protecting the criminal behaviour of Karnavas in the courtroom, and I

19 thank you for that.

20 --- Whereupon the Appeals Judgement concluded

21 at 11:53 a.m.

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