UNITED NATIONS International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Former Yugoslavia since 1991 Case No IT-98-29-A Date 30 November 2006 Original English IN THE APPEALS CHAMBER Before Judge Fausto Pocar Presiding Judge Mohamed Shahabuddeen Judge Mehmet Güney Judge Theodor Meron Judge Wolfgang Schomburg Registrar Mr Hans Holthuis PROSECUTOR v STANISLAV GALIĆ JUDGEMENT The Office of the Prosecutor Ms Helen Brady Mr Mark Ierace Ms Michelle Jarvis Ms Shelagh Mc Call Ms Anna Kotzeva Counsel for Stanislav Galić Ms Mara Pilipović Mr Stéphane Piletta-Zanin CONTENTS I INTRODUCTION 1 II STANDARD FOR APPELLATE REVIEW 3 III GROUND 1 GALI ’S RIGHT TO TESTIFY AT TRIAL 6 A THE TRIAL CHAMBER’S ORDER AND THE SUBMISSIONS OF THE PARTIES 6 B THE APPLICABILITY OF RULE 90 F OF THE RULES 7 C GALIĆ’S RIGHT TO A FAIR TRIAL 10 D THE NON-CERTIFICATION OF THE TRIAL CHAMBER’S RULING FOR APPEAL 11 IV GROUND 2 DISQUALIFICATION OF A JUDGE 12 A THE FAIRNESS OF THE PROCEDURE FOR DISQUALIFICATION 12 1 Whether the lack of an interlocutory appeal from a decision on disqualification of a Judge pursuant to Rule 15 B of the Rules violates an accused’s right to a fair trial 13 2 Whether the continued participation at trial of a Judge whose withdrawal was requested during the disqualification proceeding renders the trial unfair 14 B THE ALLEGED PARTIALITY OF JUDGE ORIE 15 1 Requirement of impartiality 16 2 Application of the statutory requirement of impartiality to the instant case 18 a Whether Judge Orie’s continuation as a trial Judge after he confirmed the Mladi Indictment establishes actual bias 18 b Whether Judge Orie’s continued participation as a trial Judge after confirming the Mladi Indictment would lead a reasonable and informed observer to apprehend bias 18 V GROUND 3 THE TRIAL CHAMBER’S DECISION NOT TO TRAVEL TO SARAJEVO 20 A THE TRIAL CHAMBER’S ON-SITE VISIT DECISION 21 B VALIDITY OF GALIĆ’S GROUND OF APPEAL 22 VI GROUNDS 4 13 AND 11 EVALUATION OF EVIDENCE 24 A GROUNDS 4 AND 13 EVALUATION OF ADDITIONAL EVIDENCE 24 B GROUND 11 APPRAISAL OF EVIDENCE AND TESTIMONIES 25 1 General argument 26 2 Testimonies of UNPROFOR witnesses 26 3 Alleged lack of impartiality 28 4 The Total Exclusion Zone TEZğ agreement and the impossibility to conduct a campaign of shelling 29 VII GROUNDS 5 16 AND 7 THE CRIME OF ACTS OR THREATS OF VIOLENCE THE PRIMARY PURPOSE OF WHICH IS TO SPREAD TERROR AMONG THE CIVILIAN POPULATION 31 A GROUNDS 5 AND 16 THE ALLEGED RECLASSIFICATION BY THE TRIAL CHAMBER OF THE CRIME CHARGED OF “INFLICTION OF TERROR” AMONG THE CIVILIAN POPULATION TO “INTENT TO SPREAD TERROR” AMONG THE CIVILIAN POPULATION AND THE PRINCIPLE OF IN DUBIO PRO REO 31 1 Whether the Trial Chamber impermissibly departed from the charge stated in the Indictment 32 2 The principle of in dubio pro reo 34 B GROUND 7 THE CRIME OF ACTS OR THREATS OF VIOLENCE THE PRIMARY PURPOSE OF WHICH IS TO SPREAD TERROR AMONG THE CIVILIAN POPULATION AS A CRIME PUNISHABLE UNDER ARTICLE 3 OF THE STATUTE 36 1 Whether a crime under Article 3 of the Statute must be grounded in customary international law or can be based on an applicable treaty 37 2 The crime of acts or threats of violence the primary purpose of which is to spread terror among the civilian population 39 a The prohibition of terror against the civilian population in customary international law 39 b The criminalisation of the prohibition of terror against the civilian population 44 3 The elements of the crime of acts or threats of violence the primary purpose of which is to spread terror among the civilian population 48 a Actus reus 49 b Mens rea and result requirement 50 4 Whether Galić intended to spread terror 52 VIII GROUND 6 ALLEGED ERROR OF LAW IN CONNECTION WITH THE CRIME OF ATTACK ON CIVILIANS 55 A CHAPEAU REQUIREMENTS OF ARTICLE 3 OF THE STATUTE 55 1 Arguments of the Parties 55 2 Discussion 57 B OBJECTIVE AND SUBJECTIVE ELEMENTS OF THE CRIME OF ATTACK ON CIVILIANS 58 1 The qualification of the crime of attack on civilians as a “violation of the laws and customs of war” 59 2 Actus reus of the crime of attack on civilians 60 a The alleged re-qualification of the Indictment 60 b The targeting of civilians and military necessity 61 c Indiscriminate and disproportionate attacks 61 d Individual combatants within the civilian population 64 3 Mens rea of the crime of attack on civilians 65 IX GROUND 8 ALLEGED ERRORS OF LAW CONCERNING CRIMES UNDER ARTICLE 5 OF THE STATUTE 67 A CHAPEAU REQUIREMENTS OF ARTICLE 5 OF THE STATUTE 67 B MURDER 69 C INHUMANE ACTS 71 X GROUND 9 ERRORS OF LAW IN CONNECTION WITH CUMULATIVE CHARGES AND CONVICTIONS 73 A CUMULATIVE CHARGES 73 B CUMULATIVE CONVICTIONS 73 1 Cumulative convictions under Articles 3 and 5 of the Statute 74 2 Cumulative convictions under Article 5 of the Statute 75 XI GROUND 10 ERROR OF LAW IN DETERMINING CRIMINAL RESPONSIBILITY77 A CHALLENGES RELATING TO ARTICLE 7 1 RESPONSIBILITY 77 1 The Trial Chamber’s reliance on circumstantial evidence 77 2 The omissions of an accused and the Trial Chamber’s finding that Gali ordered the crimes 77 B CHALLENGES RELATING TO ARTICLE 7 3 RESPONSIBILITY 79 C CHALLENGE TO CONCURRENT APPLICATION OF ARTICLES 7 1 AND 7 3 OF THE STATUTE 81 XII GROUND 12 COLLATERAL DAMAGE 82 A ASSESSMENT OF THE LEGALITY OF THE ATTACKS 83 B ASSESSMENT OF EVIDENCE IN RELATION TO THOSE ATTACKS 84 XIII GROUND 14 DEFINITION OF TERMS 86 XIV GROUND 15 ALLEGED ERRORS OF LAW AND FACT REGARDING THE EXISTENCE OF A CAMPAIGN 88 A BACKGROUND ON THE TRIAL CHAMBER’S FINDINGS REGARDING THE EXISTENCE OF A CAMPAIGN 88 B ALLEGED ERROR IN THE EVALUATION OF EVIDENCE 89 1 Arguments of the Parties 89 2 Discussion 94 a Alleged failure to prove the material facts of a campaign beyond a reasonable doubt 94 b Alleged error in consideration of evidence 95 c Alleged error in drawing conclusions on the existence of a campaign from scheduled incidents 96 3 Conclusion 97 C ALLEGED ERROR OF LAW 97 D ALLEGED ERRORS OF FACT 98 1 Alleged failure to prove the “widespread” nature of the attacks 98 2 Alleged errors in the application of the principles of distinction and proportionality 99 a Submissions of the Parties 99 b Discussion 100 3 Alleged failure to prove that Galić ordered a campaign of shelling and sniping against civilians 101 a The Trial Chamber’s findings 101 b Alleged failure to provide direct evidence of Galić’s orders 102 c Alleged response to protests 102 d Alleged evidence that Galić ordered subordinates not to target civilians 103 E ALLEGED ERRORS IN EVALUATION OF WITNESS TESTIMONY 104 XV GROUND 17 ALLEGED ERRORS CONCERNING SNIPING AND SHELLING INCIDENTS 105 A PRELIMINARY ISSUE 106 B ALLEGED ERRORS OF FACTS 108 1 Allegations that the Trial Chamber did not consider evidence 108 a The Trial Chamber did consider the evidence 109 b The evidence advanced by Galić was not relevant 110 c The evidence was relevant and there is no clear showing that the Trial Chamber considered it 112 2 Allegations that the Trial Chamber came to the incorrect conclusion based on the evidence 113 a Allegations presenting reasons 114 b Allegations not presenting reasons 117 3 Allegations that contain misrepresentations of the evidence or the Trial Judgement or that ignore other findings of the Trial Chamber 119 4 Challenges to findings without presenting argument 126 5 Challenges to findings purely because other witnesses testified differently 128 6 Re-presentation of the same argument that was made unsuccessfully at trial 130 7 Allegations that the Trial Chamber accepted incredible or unreliable evidence 131 8 Allegations contrary to evidence experience or common sense 133 9 Allegations based on new evidence 135 C SPECIFIC INCIDENTS 136 1 Markale Market 136 2 Ko evo Hospital 144 XVI GROUND 18 GALIĆ’S CRIMINAL RESPONSIBILITY 151 A ERRORS ON GENERAL MATTERS 151 B EFFECTIVE COMMAND OF SRK FORCES 152 C REPORTING AND MONITORING SYSTEMS OF THE SRK 153 D CONTROL OF SRK PERSONNEL 155 1 Control over sniping activity 155 2 Control over shelling activity 156 E WAS GALIĆ IN A POSITION TO PUNISH HIS SUBORDINATES 157 F GALIĆ’S KNOWLEDGE OF THE CRIMES 158 1 Protests delivered to Galić in person 158 2 Protests delivered to Galić’s subordinates 159 3 The character of the protests delivered 160 4 The control of the artillery assets 160 G REASONABLENESS OF MEASURES TAKEN BY GALIĆ 161 H ACTIONS UNDERTAKEN IN FURTHERANCE OF A PLAN 162 I ARTICLE 7 1 RESPONSIBILITY OF GALIĆ 163 1 Preliminary issue 163 2 Whether orders were given to target civilians 164 XVII APPEAL AGAINST SENTENCE 165 A STANDARD OF REVIEW IN SENTENCING 165 B GALIĆ’S APPEAL AGAINST SENTENCE GROUND 19 166 1 Maximum sentence 166 2 The Trial Chamber’s finding that the commission of the crimes in the present case would have attracted the harshest sentence in the former Yugoslavia 167 3 Whether the Trial Chamber took into account as aggravating circumstances factors which are elements of the crimes for which he was found guilty 169 a Gravity of the offence 170 b Gali ’s superior position as an aggravating circumstance 170 4 Whether the Trial Chamber failed to take into account several mitigating circumstances 172 a The conditions under which Galić commanded the troops 172 b The conditions of urban warfare 174 c Personal and family situation 175 i Denial of his voluntary surrender 175 ii Family situation 176 iii Cooperation with UNPROFOR and the international community 177 iv Cooperation with the Prosecution 177 v Illness and exemplary conduct in the UNDU 178 5 Whether the mode of liability influences the sentence of an accused 178 C PROSECUTION’S APPEAL AGAINST SENTENCE 179 1 Preliminary issues 180 2 Whether the sentence rendered was unreasonable 181 a The factors put forward by the Prosecution and the findings of the Trial Chamber 181 i The “victimisation” 181 ii The actual infliction of terror on the civilian population of Sarajevo 182 iii The systematic prolonged and premeditated participation of Galić 182 iv Galić’s position of authority 183 v Mitigating circumstances 183 b Conclusion 183 XVIII DISPOSITION 185 XIX PARTIALLY DISSENTING OPINION OF JUDGE POCAR 186 XX SEPARATE OPINION OF JUDGE SHAHABUDDEEN 189 XXI SEPARATE AND PARTIALLY DISSENTING OPINION OF JUDGE MERON 203 XXII SEPARATE AND PARTIALLY DISSENTING OPINION OF JUDGE SCHOMBURG 211 XXIII ANNEX A PROCEDURAL BACKGROUND 221 A HISTORY OF TRIAL PROCEEDINGS 221 B THE APPEAL 222 1 Notices of Appeal 222 2 Composition of the Appeals Chamber 222 3 Filing of the Appeal Briefs 223 4 Motions to Strike 223 5 Rule 115 Motions 224 6 Requests for Provisional Release 228 7 Status Conferences 228 8 Appeal Hearing 228 XXIV ANNEX B GLOSSARY OF TERMS 229 A LIST OF TRIBUNAL AND OTHER DECISIONS 229 1 International Tribunal 229 2 ICTR 234 3 Decisions Related to Crimes Committed During World War II 235 4 Other Decisions 235 a ICJ 235 b ECHR 235 c Domestic cases 236 B LIST OF OTHER LEGAL AUTHORITIES 236 1 Books Edited Volumes and Collections and Journals 236 2 Other Legal Authorities 237 C LIST OF ABBREVIATIONS ACRONYMS AND SHORT REFERENCES 238 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 “Appeals Chamber” and “International Tribunal ” respectively is seized of two appeals1 from the Judgement rendered by the Trial Chamber on 5 December 2003 in the case of Prosecutor v Stanislav Galić Case No IT-98-29-T “Trial Judgement” 2 Stanislav Gali was born on 12 March 1943 in the village of Gole in the municipality of Banja Luka Bosnia and Herzegovina Prior to the war in Bosnia he was commander of the 30th Partizan Brigade of the 1st Krajina Corps operating in the area south-west of Banja Luka 2 On 7 September 1992 the Minister of Defence of Republika Srpska appointed him commander of the Sarajevo Romanija Corps he assumed his new duty from the outgoing officer Major General Tomislav ip i on 10 September 1992 In November 1992 he was promoted to the rank of Major General 3 For all military persons present in Sarajevo Galić was the de jure Sarajevo Romanija Corps SRK Commander his superiors being the Chief of Staff of the Army of the Serbian Republic VRS General Ratko Mladi and the supreme commander of the VRS Radovan Karad i 4 3 In an indictment filed on 26 February 1999 Galić was charged with conducting a campaign of shelling and sniping against civilian areas of Sarajevo between 10 September 1992 and 10 August 1994 thereby inflicting terror upon its civilian population Count 1 a protracted campaign of sniper attacks upon the civilian population of Sarajevo killing and wounding a large number of persons of all ages and both sexes Counts 2 to 4 and a coordinated and protracted campaign of artillery and mortar shelling onto civilians areas of Sarajevo resulting in thousands of civilians being killed or injured Counts 5 to 7 The counts in the Indictment were supported by a representative number of individual incidents “scheduled incidents” for specificity of pleading 5 as well as other evidence of sniping shelling incidents and others aspects of the situation in Sarajevo as evidence of a more general evidentiary nature “non-scheduled incidents” 6 1 Defence Notice of Appeal 4 May 2004 Prosecution Notice of Appeal 18 December 2003 Trial Judgement para 603 3 Trial Judgement para 604 4 Trial Judgement para 606 5 Trial Judgement paras 186-188 6 Trial Judgement para 189 2 1 Case No IT-98-29-A 30 November 2006 4 On 5 December 2003 the Trial Chamber by a majority 7 found Galić guilty of acts of violence the primary purpose of which was to spread terror among the civilian population a violation of the laws or customs of war as set forth in Article 51 of Additional Protocol I to the Geneva Conventions of 1949 Count 1 murder as a crime against humanity through sniping Count 2 inhumane acts other than murder as crimes against humanity through sniping Count 3 murder as a crime against humanity through shelling Count 5 and inhumane acts other than murder as crimes against humanity through shelling Count 6 As a consequence of the finding of guilt it entered on Count 1 the Trial Chamber dismissed Counts 4 and 7 attacks on civilians as set forth in Article 51 of Additional Protocol I and Article 13 of Additional Protocol II to the Geneva Conventions of 1949 as a violation of the laws or customs of war Galić was sentenced to a single sentence of 20 twenty years’ imprisonment 8 Both the Prosecution9 and Galić10 have appealed the decision 5 The Appeals Chamber heard oral submissions of the Parties regarding this appeal on 29 August 2006 Having considered the written and oral submissions of Galić and the Prosecution the Appeals Chamber hereby renders its Judgement 7 Judge Alphons Orie and Judge Amin El Madhi constituted the majority with Judge Rafael Nieto-Navia partially dissenting The views of the majority will hereinafter be referred to as the “Trial Chamber” 8 Trial Judgement para 769 Disposition 9 See Prosecution Appeal Brief 2 March 2004 10 See Defence Appeal Brief 19 July 2004 2 Case No IT-98-29-A 30 November 2006 II STANDARD FOR APPELLATE REVIEW 6 On appeal the Parties must limit their arguments to legal errors that invalidate the decision of the Trial Chamber and to factual errors that result in a miscarriage of justice within the scope of Article 25 of the Statute These criteria are well established by the Appeals Chambers of both the International Tribunal11 and the ICTR 12 In exceptional circumstances the Appeals Chamber will also hear appeals where a party has raised a legal issue that would not lead to the invalidation of the judgement but is nevertheless of general significance to the International Tribunal’s jurisprudence 13 7 A party alleging an error of law must identify the alleged error present arguments in support of its claim and explain how the error invalidates the decision An allegation of an error of law which has no chance of changing the outcome of a decision may be rejected on that ground 14 Even if the party’s arguments are insufficient to support the contention of an error however the Appeals Chamber may conclude for other reasons that there is an error of law 15 8 The Appeals Chamber reviews the Trial Chamber’s findings of law to determine whether or not they are correct 16 Where the Appeals Chamber finds an error of law in the Trial Judgement arising from the application of the wrong legal standard by the Trial Chamber the Appeals Chamber will articulate the correct legal standard and review the relevant factual findings of the Trial Chamber accordingly 17 In so doing the Appeals Chamber not only corrects the legal error but applies the correct legal standard to the evidence contained in the trial record where necessary and determines whether it is itself convinced beyond reasonable doubt as to the factual finding challenged by the Defence before that finding is confirmed on appeal 18 The Appeals Chamber will not review the entire trial record de novo rather it will in principle only take into account evidence referred to by the Trial Chamber in the body of the Judgement or in a related footnote evidence 11 See e g Stakić Appeal Judgement para 7 Kvočka et al Appeal Judgement para 14 Vasiljević Appeal Judgement paras 4-12 Kunarac et al Appeal Judgement paras 35-48 Kupreškić et al Appeal Judgement para 29 Čelebići Appeal Judgement paras 434-435 Furundžija Appeal Judgement paras 34-40 Tadić Appeal Judgement para 64 12 See Kajelijeli Appeal Judgement para 5 Semanza Appeal Judgement para 7 Musema Appeal Judgement para 15 Akayesu Appeal Judgement para 178 Kayishema and Ruzindana Appeal Judgement paras 177 320 Under the Statute of the ICTR the relevant provision is Article 24 13 Stakić Appeal Judgement para 7 Kupreškić et al Appeal Judgement para 22 Tadić Appeal Judgement para 247 14 Stakić Appeal Judgement para 8 Kvočka et al Appeal Judgement para 16 citing Krnojelac Appeal Judgement para 10 15 Stakić Appeal Judgement para 8 Kvočka et al Appeal Judgement para 16 Kordi and erkez Appeal Judgement para 16 Vasiljević Appeal Judgement para 6 Kupreškić et al Appeal Judgement para 26 See also Gacumbitsi Appeal Judgement para 7 Ntagerura Appeal Judgement para 11 Semanza Appeal Judgement para 7 Kambanda Appeal Judgement para 98 16 Stakić Appeal Judgement para 9 Krnojelac Appeal Judgement para 10 17 Stakić Appeal Judgement para 9 Kvočka et al Appeal Judgement para 17 Kordi and erkez Appeal Judgement para 17 Blaškić Appeal Judgement para 15 18 Stakić Appeal Judgement para 9 Kvočka et al Appeal Judgement para 17 Kordi and erkez Appeal Judgement para 17 Blaškić Appeal Judgement para 15 3 Case No IT-98-29-A 30 November 2006 contained in the trial record and referred to by the parties and additional evidence admitted on appeal 19 9 When considering alleged errors of fact on appeal from the Defence the Appeals Chamber will determine whether no reasonable trier of fact could have reached the verdict of guilt beyond reasonable doubt 20 The Appeals Chamber applies the same reasonableness standard to alleged errors of fact regardless of whether the finding of fact was based on direct or circumstantial evidence 21 In determining whether or not a Trial Chamber’s finding was one that no reasonable trier of fact could have reached the Appeals Chamber “will not lightly disturb findings of fact by a Trial Chamber” 22 The Appeals Chamber recalls as a general principle the approach adopted by the Appeals Chamber in Kupreškić which stated Pursuant to the jurisprudence of the Tribunal the task of hearing assessing and weighing the evidence presented at trial is left primarily to the Trial Chamber Thus the Appeals Chamber must give a margin of deference to a finding of fact reached by a Trial Chamber Only where the evidence relied on by the Trial Chamber could not have been accepted by any reasonable tribunal of fact or where the evaluation of the evidence is “wholly erroneous” may the Appeals Chamber substitute its own finding for that of the Trial Chamber 23 10 On appeal a party may not merely repeat arguments that did not succeed at trial unless the party can demonstrate that the Trial Chamber’s rejection of them constituted such an error as to warrant the intervention of the Appeals Chamber 24 Arguments of a party which 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 25 19 Stakić Appeal Judgement para 9 Blaškić Appeal Judgement para 13 Kordi and erkez Appeal Judgement para 21 fn 12 20 Stakić Appeal Judgement para 10 Kvočka et al Appeal Judgement para 18 Kordi and erkez Appeal Judgement para 18 Blaškić Appeal Judgement para 16 Čelebići Appeal Judgement para 435 Furundžija Appeal Judgement para 37 Aleksovski Appeal Judgement para 63 Tadić Appeal Judgement para 64 21 Stakić Appeal Judgement para 220 Čelebići Appeal Judgement para 458 Similarly the type of evidence direct or circumstantial is irrelevant to the standard of proof at trial where the accused may only be found guilty of a crime if the Prosecution has proved each element of that crime and the relevant mode of liability beyond a reasonable doubt See Stakić Appeal Judgement para 219 Čelebići Appeal Judgement para 458 22 Stakić Appeal Judgement para 10 Furundžija Appeal Judgement para 37 referring to Tadić Appeal Judgement para 64 See also Kvočka et al Appeal Judgement para 19 Krnojelac Appeal Judgement para 11 Aleksovski Appeal Judgement para 63 Musema Appeal Judgement para 18 23 Stakić Appeal Judgement para 10 Kvočka et al Appeal Judgement para 19 quoting Kupreškić et al Appeal Judgement para 30 See also Kordi and erkez Appeal Judgement para 19 fn 11 Blaškić Appeal Judgement paras 17-18 24 Stakić Appeal Judgement para 11 Gacumbitsi Appeal Judgement para 9 Kajelijeli Appeal Judgement para 6 citing Niyitegeka Appeal Judgement para 9 See also Blaškić Appeal Judgement para 13 Rutaganda Appeal Judgement para 18 25 Stakić Appeal Judgement para 11 Gacumbitsi Appeal Judgement para 9 Ntagerura Appeal Judgement para 13 Kajelijeli Appeal Judgement para 6 citing Blaškić Appeal Judgement para 13 Niyitegeka Appeal Judgement para 9 Rutaganda Appeal Judgement para 18 4 Case No IT-98-29-A 30 November 2006 11 In order for the Appeals Chamber to assess a party’s arguments on appeal the appealing party is expected to provide precise references to relevant transcript pages or paragraphs in the Trial Judgement to which the challenges are being made 26 Further “the Appeals Chamber cannot be expected to consider a party’s submissions in detail if they are obscure contradictory vague or suffer from other formal and obvious insufficiencies” 27 12 It should be recalled that the Appeals Chamber has inherent discretion in selecting which submissions merit a detailed reasoned opinion in writing 28 Furthermore the Appeals Chamber may dismiss arguments which are evidently unfounded without providing detailed reasoning 29 26 Practice Direction on Appeals Requirements para 4 b See also Stakić Appeal Judgement para 12 Blaškić Appeal Judgement para 13 Vasiljević Appeal Judgement para 11 Kajelijeli Appeal Judgement para 7 Niyitegeka Appeal Judgement para 10 Rutaganda Appeal Judgement para 19 Kayishema and Ruzindana Appeal Judgement para 137 27 Stakić Appeal Judgement para 12 Vasiljević Appeal Judgement para 12 Kunarac et al Appeal Judgement paras 43 48 Gacumbitsi Appeal Judgement para 10 Ntagerura Appeal Judgement para 13 Kajelijeli Appeal Judgement para 7 Niyitegeka Appeal Judgement para 10 28 Stakić Appeal Judgement para 13 Kunarac et al Appeal Judgement para 47 Gacumbitsi Appeal Judgement para 10 Ntagerura Appeal Judgement para 14 Kajelijeli Appeal Judgement para 8 29 Stakić Appeal Judgement para 13 Vasiljević Appeal Judgement para 12 Kunarac et al Appeal Judgement para 48 Gacumbitsi Appeal Judgement para 10 Ntagerura Appeal Judgement para 14 Kajelijeli Appeal Judgement para 8 Niyitegeka Appeal Judgement para 11 Rutaganda Appeal Judgement para 19 5 Case No IT-98-29-A 30 November 2006 III GROUND 1 GALI ’S RIGHT TO TESTIFY AT TRIAL 13 In his first ground of appeal Gali argues that the Trial Chamber made an error of law invalidating the Trial Judgement in requiring that in the event that he should choose to testify he do so before the Defence calls its expert witnesses thereby violating his right to a fair trial 30 He also argues that the Trial Chamber erred in refusing to certify this ruling for appeal 31 A The Trial Chamber’s order and the submissions of the Parties 14 The Prosecution submits that when the Defence presented its witness list on 19 September 2001 it reserved its position as to whether Galić would testify 32 Further after 34 of its fact witnesses had already testified 33 the Defence reserved its position regarding Galić’s possible testimony until the last witness that is the last expert witness was called 34 The Trial Chamber ruled that if the Defence wished to continue to reserve the right to call Gali it would have to provide the Prosecution with a survey of subjects about which he would testify 35 It also established parameters for the timing of such testimony as follows 1 I f the Defence wishes to call the Accused to testify as a witness it must do so prior to the testimonies of the Defence expert witness and 2 the Defence may in any event apply to recall the Accused in light of and after these expert testimonies 36 15 Gali submits that the Trial Chamber’s order “caused him to decide not to testify” thus “directly prevent ing the Defence from introducing one important witness” and inhibiting his right to a fair trial as prescribed in Article 21 of the Statute 37 He claims that this order of the Trial Chamber issued pursuant to Rule 90 F of the Rules abrogated his right to testify on his own behalf “at any time during the trial” and that an accused has a fundamental right to “present facts and arguments actually relevant for all the presented evidence and to speak about all the evidence” 38 30 Defence Appeal Brief para 20 Defence Appeal Brief para 21 32 Prosecution Response Brief para 1 4 33 Prosecution Response Brief para 1 4 34 Prosecutor v Stanislav Galić Case No IT-98-29-T Defence Submission Regarding the Possible and Hypothetical Hearing of General Stanislav Gali as a Witness 21 January 2003 35 T 18076 36 Prosecutor v Stanislav Gali Case No IT-98-29-T Confidential Decision on Certification Pursuant to Rule 73 B Regarding the Possible Testimony of the Accused as a Witness 4 February 2003 “Certification Decision” p 2 See also T 18076 37 Defence Reply Brief para 6 38 Defence Appeal Brief para 20 31 6 Case No IT-98-29-A 30 November 2006 16 The Prosecution claims that the Trial Chamber acted within the discretion granted to it by Rule 90 F of the Rules by requiring Gali ’s testimony before the expert witnesses so the experts would have all the facts adduced available to them 39 It further argues that the Trial Chamber preserved Gali ’s right to testify after the experts so he was never deprived of his right 40 It states that Gali could still have testified as the final witness by applying for permission to do so from the Trial Chamber 41 It claims that while Rule 85 C of the Rules gives an accused the right to testify it does not give him or her the right to do so at any time of his or her choosing and does not guarantee the right to testify as the final witness 42 It refers to the laws of several national jurisdictions and the International Military Tribunal to show there is no unanimity of state practice on an accused’s right to determine the timing of his or her testimony 43 It argues that the order of the Trial Chamber did not contravene Gali ’s right to a fair trial enshrined in Article 21 of the Statute because he was not compelled to testify 44 B The applicability of Rule 90 F of the Rules 17 While Rule 85 C which states that an “accused may appear as a witness in his or her own defence” could on its face be read as implying that an accused who chooses to testify in his own defence is subject to the same Rules as any other witness the Appeals Chamber has previously confirmed that “ t here is a fundamental difference between being an accused who might testify as a witness if he so chooses and a witness” 45 There are Rules relating to testimony that are “completely inapplicable to the accused and incompatible with his rights” 46 Rule 77 A i of the Rules which envisages that “a witness before a Chamber who contumaciously refuses or fails to answer a question” can be held in contempt of the International Tribunal obviously cannot apply to an accused who cannot be compelled to testify in his own trial or compelled to answer a question by virtue of his fundamental right under Article 21 4 g of the Statute “not to be compelled to testify against himself or to confess guilt” The same applies to Rule 90 E which envisages that a 39 Prosecution Response Brief paras 1 10-1 12 Prosecution Response Brief para 1 1 3 41 Prosecution Response Brief para 1 17 42 Prosecution Response Brief paras 1 1 4-1 16 An accused may still testify last but the Prosecution argues that Rule 85 C of the Rules does not guarantee that 43 Prosecution Response Brief paras 1 21-1 22 44 Prosecution Response Brief para 1 18 45 Delalić et al Decision on Production of Notes para 35 discussed with approval at paragraph 125 of the Kvočka et al Appeal Judgement In that same paragraph of the Kvo ka et al Appeal Judgement the Appeals Chamber concluded “ A n accused who testifies as a witness is not to be treated qua witness … ” 46 Delalić et al Decision on Production of Notes para 35 confirmed at paragraph 125 of the Kvočka et al Appeal Judgement 40 7 Case No IT-98-29-A 30 November 2006 Chamber may compel a witness to answer a question that is self-incriminating 47 In sum the Statute and the Rules of the International Tribunal concerning witnesses cannot automatically apply to accused persons testifying under Rule 85 C as an accused enjoys “specific protection with regard to respect for the rights of the defence” 48 18 The fact that Rule 90 contains some provisions concerning “Testimony of Witnesses” that are completely “inapplicable to the accused and incompatible with his rights” 49 does not necessarily mean that all its provisions are inapplicable Rule 90 F is a case in point It states that Trial Chambers “shall exercise control over the mode and order of interrogating witnesses and presenting evidence so as to i make the interrogation and presentation effective for the ascertainment of the truth and ii avoid needless consumption of time” This provision gives Trial Chambers discretion in the administration of trials 50 The Trial Chamber’s discretion however is “subject to a Trial Chamber’s obligation to respect the rights of an accused” 51 19 Rule 85 C of the Rules does not expressly address any parameters that might restrict the accused’s right to appear as a witness in his or her own trial Some basic guidance in this regard may be taken from Rules 85 A and 86 of the Rules which indicate that such testimony must take place during the presentation of defence evidence Beyond this the only specification made by the Rules is as noted above that the right of an accused to testify in his own trial not be infringed 52 While Rule 85 C of the Rules does not restrict the right of the accused to testify to a particular stage of his defence this fact is not incompatible with a Trial Chamber exercising its given powers to administer the conduct of a trial by imposing a justified restriction The fact that to date “it has been the practice of the International Tribunal to allow those accused who choose to testify to determine when to do so” 53 serves only as evidence of a practice – it has not created an enforceable 47 Rule 90 C which states that a witness “who has not yet testified shall not be present when the testimony of another witness is given” is a further example of a rule that cannot apply as an accused is present in court during the testimonies of the witnesses in his case 48 Prosecutor v Miroslav Kvočka Milojica Kos Mla o Radić Zoran Žigić and Dragoljub Prcać Case No IT-9830 1-T Decision on the Admission of the Record of the Interview of the Accused Kvočka 16 March 2001 p 3 cited with approval at paragraph 125 of the Kvočka et al Appeal Judgement 49 Kvočka et al Appeal Judgement para 125 50 See e g Prliæ et al Decision on Interlocutory Appeal page 3 the Appeals Chamber affords deference to the Trial Chamber in the exercise of its discretion in managing the trial 51 Prosecutor v Zdravko Tolimir Radivoje Mileti and Milan Gvero Case No IT-04-80-AR73 1 Decision on Radivoje Mileti 's Interlocutory Appeal Against the Trial Chamber's Decision on Joinder of Accused 27 January 2006 para 29 It is clearly stated in Article 20 1 of the Statute that “ t he Trial Chambers shall ensure that a trial is fair and expeditious and that proceedings are conducted in accordance with the rules of procedure and evidence with full respect for the rights of the accused … ” emphasis added 52 Delali et al Order on Witness Appearance p 3 53 Kordi and Čerkez Trial Procedure Decision p 4 See also Delali et al Order on Witness Appearance p 3 The Prosecution referred to those two decisions to support its proposition that Trial Chambers have a wide discretion in ordering when to call witnesses See Prosecution Response Brief para 1 19 Gali to the contrary interpreted those decisions as confirming that an accused has the right to choose when to testify See Defence Reply Brief para 4 In both cases the Trial Chamber denied the Prosecution’s request to order the accused if they wanted to testify to do so at 8 Case No IT-98-29-A 30 November 2006 right to this end Moreover a survey of national law practices on this issue is of no further assistance to Galić’s argument – it simply demonstrates that there is no established rule as to when an accused may testify or speak in his own trial While in some countries an accused may testify as a witness at any time during the defence case 54 in other countries like Malaysia 55 South Africa 56 and Singapore 57 the accused generally must do so before other defence witnesses In civil law countries an accused may give a statement or make a declaration throughout the proceedings however he does not have the role of a witness 58 There exists no uniform practice as to when an accused is entitled to speak For example in Italy the accused may be examined during the defence case at any time after other interested parties 59 although the accused is entitled to add a declaration at any time during the trial60 and to have the final word 61 In Germany the accused plays a particularly active role that can be described as follows as a rule he may give a statement and be interrogated before any evidence is adduced 62 he is entitled to add a statement at any time during the taking of evidence 63 and is entitled to have the final word 64 In conclusion the Appeals Chamber finds no general rule as to when the accused is entitled to take the floor 20 The Appeals Chamber therefore concludes that Trial Chambers have discretion pursuant to Rule 90 F of the Rules to determine when an accused may testify in his own defence but this the beginning of the Defence case See Delali et al Order on Witness Appearance p 3 Kordi and Čerkez Trial Procedure Decision p 5 That is a much greater restriction than requiring testimony before the experts and leaving open the door to testify after them Therefore neither of the two cases cited is controlling in this regard as both present very different factual situations from the case at hand and neither considered the countervailing considerations of Rule 90 F of the Rules which were not at issue 54 See e g Brooks v Tennessee 406 U S 605 612 1972 holding that a law “violates an accused’s constitutional right to remain silent insofar as it requires him to testify first for the defense or not at all” R v Angelantoni 1975 31 C R n s 342 Ont CA holding that a “trial Judge in a criminal case can neither direct the calling of the accused nor the order in which the accused will testify ” 55 Malaysia Criminal Procedure Code Act 593 Section 173 j iii 1999 “Provided that if the accused elects to be called as a witness his evidence shall be taken before that of other witnesses for the defence ” 56 South Africa Criminal Procedure Act of 1999 para 151 1 B i if an accused chooses to testify “he shall except where the court on good cause shown allows otherwise be called as a witness before any other witness for the defence” If an accused initially remains silent but subsequently chooses to speak “the court may draw such inference from the accused’s conduct as may be reasonable in the circumstances ” 57 Singapore Criminal Procedure Code Chapter 68 para 190 3 1985 “If an accused elects to be called as a witness his evidence shall be taken before that of other witnesses for the defence ” 58 Consequences of this different approach are among others that the accused is not heard under oath and that lying by the accused is not regarded as a criminal offense 59 Italy Code of Criminal Procedure para 503 1 60 Italy Code of Criminal Procedure para 494 1 61 Italy Code of Criminal Procedure para 523 5 62 Germany Code of Criminal Procedure Section 243 4 ““ After the public prosecutor reads the charges t he defendant shall … be informed that he may choose to respond to the charges or not to make any statement on the charges” Germany Code of Criminal Procedure Section 244 1 “Evidence shall be taken after the defendant's examination ” 63 Germany Code of Criminal Procedure Section 257 1 “After each co-defendant has been examined and after evidence has been taken in each individual case the defendant should be asked whether he has anything to add ” 64 Germany Code of Criminal Procedure Section 258 3 “The defendant shall be asked even if defence counsel has spoken for him whether he himself has anything to add to his defence ” Germany Code of Criminal Procedure Section 258 2 “The defendant shall have the last word ” 9 Case No IT-98-29-A 30 November 2006 power must nevertheless be exercised with caution as it is in principle for both parties to structure their cases themselves and to ensure that the rights of the accused are respected in particular his or her right to a fair trial C Galić’s right to a fair trial 21 On Appeal Galić alleges that his right to testify was unduly prejudiced by the condition placed on his exercise of that right by the Trial Chamber and the fairness of his trial was therefore impugned Where a party alleges on appeal that the right to a fair trial has been infringed it must prove that the violation caused such prejudice to it as to amount to an error of law invalidating the judgement 65 22 The Appeals Chamber has already found that reading Rule 85 C together with Rule 90 F Gali had a right to testify if he so desired and the Trial Chamber had the discretion to determine when he could do so provided there was no unreasonable interference with his right to testify In the present case the Trial Chamber only required that Galić testify if he so desired before the expert witnesses did The Trial Chamber articulated the reason for its decision it determined that ascertainment of the truth would be best served if all fact witnesses – including Gali – testified before the expert witnesses so the experts could base their testimony on all the facts adduced including those adduced by Gali 66 In addition if Gali had testified before the experts and had still wanted to testify last the Trial Chamber said he would be able to apply to give further testimony in light of and after these expert testimonies so that any opportunity denied to him to testify in relation to all the evidence adduced in the trial would have been mitigated by this further opportunity 67 In these circumstances the Appeals Chamber is not satisfied that the conditions placed by the Trial Chamber on Gali ’s right to testify on his own behalf so unreasonably interfered with his right to testify that his right to a fair trial was infringed 23 For the foregoing reasons the Appeals Chamber finds that the Trial Chamber did not violate Galić’s right to testify in his own trial and dismisses this part of his first ground of appeal 65 Kordi and Čerkez Appeal Judgement para 119 The Prosecution also notes that Gali is not an expert so no benefit would accrue to the Defence in having him testify after the experts See Prosecution Response Brief para 1 26 That is he would not have been able to testify about the expert evidence 67 Certification Decision p 2 The Appeals Chamber also notes that Gali argues that there was no guarantee that the Trial Chamber would have granted the application of a recall See Defence Reply Brief para 3 The Appeals Chamber will not address the issue whether or not the denial of a recall in his case would have infringed his rights as his argument is based on mere speculation 66 10 Case No IT-98-29-A 30 November 2006 D The non-certification of the Trial Chamber’s ruling for appeal 24 Gali also argues that the Trial Chamber erred in refusing to certify the ruling for appeal because “it would have been significant for the further practice of the Tribunal to have this matter debated in the interlocutory appeal procedure” 68 25 Certification of interlocutory decisions pursuant to Rule 73 of the Rules is within the discretion of the Trial Chamber which may certify decisions if they involve an issue which “would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial and for which in the opinion of the Trial Chamber an immediate resolution by the Appeals Chamber may materially advance the proceedings” 69 In order to succeed on this ground Galić must show that the Trial Chamber erred in the exercise of its discretion in refusing to certify the issue 70 On appeal however Galić only claims that the refusal to certify was an error because of the significance of the issue 71 but he has not shown how certification would have significantly affected the fair and expeditious conduct or outcome of the trial nor has he demonstrated how if at all the Trial Chamber abused its discretion in refusing certification 72 26 For the foregoing reasons the Appeals Chamber dismisses Galić’s first ground of appeal 68 Defence Appeal Brief para 21 Rule 73 B of the Rules 70 Prosecutor v Milošević Reasons for Decision on Prosecution Interlocutory Appeal from Refusal to Order Joinder Case Nos IT-99-37-AR73 IT-01-50-AR73 and IT-01-51-AR73 18 April 2002 paras 3-4 71 Defence Appeal Brief para 21 72 As noted above the Trial Chamber did not infringe on Galić’s right to testify in his own trial as he could have asked to testify at a later stage 69 11 Case No IT-98-29-A 30 November 2006 IV GROUND 2 DISQUALIFICATION OF A JUDGE 27 Under his second ground of appeal Gali challenges the fairness of the International Tribunal’s procedure pursuant to Rule 15 B for disqualification of a Judge 73 He also claims that the impartiality and the appearance of impartiality of Judge Orie the Presiding Judge in his trial were compromised by the Judge’s confirmation of an indictment against Ratko Mladi “Mladi Indictment” on 8 November 2002 He argues that the factual allegations of the Mladi case overlap with the factual allegations of his case and that he was named in the Mladi Indictment as a participant in a joint criminal enterprise to commit genocide 74 A The fairness of the procedure for disqualification 28 Gali challenges the fairness of the International Tribunal’s procedure for disqualification of a Judge pursuant to Rule 15 B of the Rules on two grounds He first argues that he was improperly denied the right to submit to “the control of a higher authority”75 the decisions ruling on his request for disqualification and claims that “ e very such decision … should be submitted to the control of a higher authority” 76 Second he claims that the proceedings are unfair since the Judge had an obligation to suspend his work on the case until the completion of the disqualification proceedings which he did not do 77 At the Appeal Hearing Galić argued that case-law from the European Court of Human Rights and United States supports his proposition that Judge Orie was not impartial and should have been disqualified 78 29 The Prosecution responds that the International Tribunal’s procedure for disqualification of a Judge offers sufficient procedural safeguards to be considered fair 79 With regard to Gali ’s first claim it argues that the fact that the Bureau makes a de novo finding rather than merely reviewing the Presiding Judge’s decision may be more beneficial to an accused because it offers him a second opportunity unlike an interlocutory appeal in which the Appeals Chamber is limited to reviewing 73 Defence Appeal Brief para 23 Defence Appeal Brief para 23 fn 5 75 Defence Appeal Brief para 23 76 Defence Appeal Brief para 23 77 Defence Appeal Brief para 24 78 AT 61-64 citing without elaboration and without properly filing a supplement to the book of authorities Piersack v Belgium judgment of 1 October 1982 53 Eur Ct H R ser A at 14-15 De Cubber v Belgium judgment of 26 October 1984 86 Eur Ct H R ser A Hauschildt v Denmark judgment of 24 May 1989 154 Eur Ct H R ser A Padovani v Italy judgment of 26 February 1993 257 Eur Ct H R ser A Şahiner v Turkey judgment of 25 September 2001 155 Eur Ct H R 2001-IX Sramek v Austria judgment of 22 October 1984 84 Eur Ct H R ser A Sainte-Marie v France judgment of 16 December 1992 235-A Eur Ct H R ser A Findlay v United Kingdom judgment of 25 February 1997 263 Eur Ct H R Collins v Dixie Transport Inc 543 So 2d 160 Sup Ct Miss 1989 Berger v United States 255 U S 22 1921 79 Prosecution Response Brief paras 2 4 2 11 74 12 Case No IT-98-29-A 30 November 2006 errors of law and fact 80 Furthermore it points out that the Appeals Chamber can examine this issue on appeal if it is relevant to the fairness of the trial 81 With respect to Gali ’s second argument the Prosecution claims that the Judge’s continued participation in the trial while the disqualification request was pending was entirely appropriate given the trial’s advanced stage and the need for efficiency 82 Finally it submits that the Bureau’s finding that the Judge’s impartiality was not compromised renders the question moot 83 1 Whether the lack of an interlocutory appeal from a decision on disqualification of a Judge pursuant to Rule 15 B of the Rules violates an accused’s right to a fair trial 30 The disqualification procedure of a Judge is governed by Rule 15 B of the Rules This Rule provided at the time relevant to this appeal that the disqualification and withdrawal of a Judge should be referred to the Presiding Judge of the Chamber who shall confer with the Judge in question 84 After such consultation Rule 15 B of the Rules envisaged that the Presiding Judge had to decide whether it was “necessary” to refer the matter to the Bureau 85 Even if the Presiding Judge decided that it was not “necessary” to do so the President had to refer the matter to the Bureau if the decision of the Presiding Judge not to withdraw a Judge was challenged by the accused 86 31 While no interlocutory appeal to the Appeals Chamber is available from a decision of the Presiding Judge pursuant to Rule 15 B of the Rules87 and there is no interlocutory appeal from 80 Prosecution Response Brief para 2 12 Prosecution Response Brief para 2 13-2 16 82 Prosecution Response Brief para 2 17 83 Prosecution Response Brief para 2 17 84 Rule 15 B was amended on 21 July 2005 and now reads in relevant part B i Any party may apply to the Presiding Judge of a Chamber for the disqualification and withdrawal of a Judge of that Chamber from a trial or appeal upon the above grounds The Presiding Judge shall confer with the Judge in question and report to the President ii Following the report of the Presiding Judge the President shall if necessary appoint a panel of three Judges drawn from other Chambers to report to him its decision on the merits of the application If the decision is to uphold the application the President shall assign another Judge to sit in the place of the Judge in question iii The decision of the panel of three Judges shall not be subject to interlocutory appeal The Appeals Chamber refers in the present case to Rule 15 B as in force before that amendment which read in relevant part Any party may apply to the Presiding Judge of a Chamber for the disqualification and withdrawal of a Judge of that Chamber from a trial or appeal upon the above grounds The Presiding Judge shall confer with the Judge in question and if necessary the Bureau shall determine the matter If the Bureau upholds the application the President shall assign another Judge to sit in place of the disqualified Judge 85 Pursuant to Rule 23 A of the Rules the Bureau is composed of the President the Vice-President and the Presiding Judges of the Trial Chambers 86 Prosecutor v Stanislav Gali Case No IT-98-29-AR54 Decision on Appeal from Refusal of Application for Disqualification and Withdrawal of Judge 13 March 2003 “Appeal Decision on Disqualification” para 8 87 Appeal Decision on Disqualification para 8 81 13 Case No IT-98-29-A 30 November 2006 decisions of the Bureau 88 the Appeals Chamber nevertheless notes that upon referral of a motion for disqualification to the Bureau the Bureau reviews the motion for disqualification de novo 89 As noted by the Bureau in the present case the impartiality and appearance of impartiality of the Judges that Rule 15 B of the Rules aims at preserving is guaranteed by the fact that the Presiding Judge in charge of reviewing the motion for disqualification has to refer the matter to the Bureau in case the moving party does not agree with his decision T he Rule might be read as indicating that when the challenged Judge and the Presiding Judge agree on the proper outcome except when those are one and the same person that is the end of the matter But one of the Rule’s leading aims seems to be to promote both impartiality and the appearance of impartiality by having the disqualification decision made by Judges other than the challenged Judge Allowing de novo consideration by the Bureau – which stands at a greater remove from the challenged Judge than does the Presiding Judge of the challenged Judge’s Chamber – thus serves that purpose Moreover disqualification motions almost never involve factual disputes other than about the ultimate question of bias thus enabling the Bureau to address the question directly by applying the established legal tests to the undisputed record 90 Hence while there is no interlocutory appeal of a decision under Rule 15 B of the Rules the role of the Bureau effectively provides a second course to an accused to have his arguments for disqualification reconsidered in full by an independent panel of Judges Further the fact that a decision on disqualification cannot be appealed at trial does not necessarily mean that the impartiality of a Judge cannot be considered in an appeal from a judgement 32 For the foregoing reasons the Appeals Chamber finds that the lack of an interlocutory appeal from a decision on disqualification of a Judge pursuant to Rule 15 B of the Rules does not violate an accused’s right to a fair trial Accordingly this subground of Galić’s appeal is dismissed 2 Whether the continued participation at trial of a Judge whose withdrawal was requested during the disqualification proceeding renders the trial unfair 33 Neither the Statute nor the Rules provide for the suspension of trial while a motion for disqualification is being considered That does not mean however that an accused cannot request a suspension of the proceedings The Trial Chamber’s decision to suspend a trial while a disqualification motion is pending is a discretionary decision Where the Trial Chamber refuses to suspend the proceedings the accused can petition the Bureau to do so upon its consideration of the 88 See Prosecutor v Blagojevi et al Case No IT-02-60 Bureau Decision on Blagojevi ’s Motion for Clarification 27 March 2003 para 4 89 See Prosecutor v Blagojevi IT-02-60-T Decision on Blagojevi ’s Motion for Clarification 27 March 2003 para 4 See also Decision on Galic’s Application Pursuant to Rule 15 B IT-98-29-T Bureau 28 March 2003 “Galić Bureau Decision on Disqualification” para 7 14 Case No IT-98-29-A 30 November 2006 application for disqualification Again the Appeals Chamber is satisfied that the recourse available to the applicant through the Bureau is a sufficient mechanism to ensure that the accused’s rights are not prejudiced Moreover Gali did not present any arguments that the continuation of Judge Orie despite the pending disqualification proceeding violated his right to fair trial or that he was prejudiced by it in any way This part of Galić’s second ground of appeal is dismissed B The alleged partiality of Judge Orie 34 Prior to addressing the issue whether Judge Orie the Presiding Judge in Gali ’s trial was impartial or gave an appearance of bias the Appeals Chamber first addresses the basis for considering this challenge In the Furund ija Appeal Judgement despite the fact that the issue could reasonably have been raised at trial and on that basis the Appeals Chamber could have considered that Furund ija had waived his right to raise the matter on appeal the Appeals Chamber considered the argument based on its “general importance” 91 Further in the elebi i Appeal Judgement the Appeals Chamber addressed the issue of the disqualification of a Judge on the basis of arguments presented by the parties on appeal that had not previously been considered by the Trial Chamber 92 The Appeals Chamber is thus satisfied that it is properly seised of this challenge 35 In the instant case the allegation of bias relates to Judge Orie’s role in confirming the amended indictment against Ratko Mladi in which Mladi was charged with crimes relating to the case against Gali Gali submits that the Bureau’s finding that Judge Orie was not biased and that a reasonable observer could not reasonably apprehend such bias is unacceptable 93 He first contends that the overlap between the charges and evidence in the Mladi Indictment and the case against him demonstrate that Judge Orie by confirming the Mladi Indictment effectively pre-judged his guilt for some of the crimes for which he has been prosecuted 94 He also argues that because the Mladi Indictment alleged his participation in crimes for which he had not been charged Judge Orie’s perception would be unfavourably biased 95 36 The Prosecution contends that Judge Orie’s continuation as Presiding Judge after having confirmed the Mladi Indictment did not render Gali ’s trial unfair First it argues that Judge Orie’s confirmation of the Mladi Indictment does not establish actual bias It submits that Gali has failed to acknowledge the different functions performed by a confirming Judge and a Judge who sits at 90 Galić Bureau Decision on Disqualification para 7 Furund ija Appeal Judgement para 174 92 elebi i Appeal Judgement paras 651-709 93 Defence Appeal Brief para 24 94 Defence Appeal Brief fn 5 95 Defence Appeal Brief fn 5 91 15 Case No IT-98-29-A 30 November 2006 trial 96 It argues that a confirming Judge merely determines whether a prima facie case exists namely whether a reasonable trier of fact could find the evidence sufficient to find the accused guilty beyond reasonable doubt while a trial Judge has to determine whether the Prosecution has established an accused’s guilt beyond reasonable doubt 97 It further submits that Rule 15 C of the Rules which states that the Judge confirming an indictment is not incompetent to hear that case at trial would indicate a fortiori that a Judge should be able to sit as trial Judge in a case that presents an overlap with one in which he was the confirming Judge 98 In relation to Gali ’s second argument the Prosecution contends that Judges’ professional experience and training enable them to put out of their mind evidence other than that presented at trial 99 Finally it submits that there is no appearance of bias In support of this point it relies on jurisprudence of the International Tribunal rejecting motions based on the claim that a Judge’s participation in one case tainted his hearing of the evidence in another 100 1 Requirement of impartiality 37 The Appeals Chamber recalls that Article 21 of the Statute guarantees the right to a fair trial and that the right to be tried before an independent and impartial tribunal is an integral component of this right 101 Accordingly Article 13 of the Statute provides that Judges of the International Tribunal “shall be persons of high moral character impartiality and integrity” That requirement is reflected in Rule 15 A of the Rules governing disqualification of Judges which provides that “ a Judge may not sit on a trial or appeal in any case in which the Judge has a personal interest or concerning which the Judge has or has had any association which might affect his or her impartiality” 38 In interpreting and applying the impartiality requirement in the Statute and the Rules the Appeals Chamber stated in the Furundžija Appeal Judgement T here is a general rule that a Judge should not only be subjectively free from bias but also that there should be nothing in the surrounding circumstances which objectively gives rise to an appearance of bias 102 39 An appearance of bias is established if 96 Prosecution Response Brief para 2 21 Prosecution Response Brief para 2 22 98 Prosecution Response Brief para 2 24 99 Prosecution Response Brief para 2 27 100 Prosecution Response Brief paras 2 28-2 29 101 Furundžija Appeal Judgement para 177 Kayishema and Ruzindana Appeal Judgement para 51 Rutaganda Appeal Judgement para 39 102 Furundžija Appeal Judgement para 189 97 16 Case No IT-98-29-A 30 November 2006 i a Judge is a party to the case or has a financial or proprietary interest in the outcome of a case or if the Judge’s decision will lead to the promotion of a cause in which he or she is involved together with one of the parties Under these circumstances a Judge's disqualification from the case is automatic or ii the circumstances would lead a reasonable observer properly informed to reasonably apprehend bias 103 40 With regard to the test of the reasonable observer the Appeals Chamber has held T he reasonable person must be an informed person with knowledge of all the relevant circumstances including the traditions of integrity and impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties that Judges swear to uphold 104 41 This two part test is entirely consistent with the European Court of Human Rights case-law pointed to by Galić during the Appeal Hearing Indeed many of those cases were cited in the Furundžija Appeal Judgement 105 When applying this test the Appeals Chamber emphasises that the Judges of the International Tribunal enjoy a presumption of impartiality The Appeals Chamber stated in the Furundžija Appeal Judgement I n the absence of evidence to the contrary it must be assumed that the Judges of the International Tribunal ‘‘can disabuse their minds of any irrelevant personal beliefs or predispositions ” It is for the Appellant to adduce sufficient evidence to satisfy the Appeals Chamber that the Judge in question was not impartial in his case There is a high threshold to reach in order to rebut the presumption of impartiality 106 In the context of the allegations made in the instant case it should be recalled in particular that the Judges of the International Tribunal “are professional judges who are called upon to try a number of cases arising out of the same events or arising out of the same contextual background and that they may be relied upon to apply their mind to the evidence in the particular case before them” 107 103 Furundžija Appeal Judgement para 189 Furundžija Appeal Judgement para 190 See also Čelebići Appeal Judgement para 683 105 See Furundžija Appeal Judgement footnotes 243-245 and accompanying text In addition the United States case law referred to by Galić also describes a two part subjective and objective test for impartiality similar to one applied by the International Tribunal 106 Furundžija Appeal Judgement para 197 See also Akayesu Appeal Judgement para 91 Rutaganda Appeal Judgement para 42 107 Akayesu Appeal Judgement para 269 citing Tali Decision on Disqualification and Withdrawal of a Judge para 17 104 17 Case No IT-98-29-A 30 November 2006 2 Application of the statutory requirement of impartiality to the instant case a Whether Judge Orie’s continuation as a trial Judge after he confirmed the Mladi Indictment establishes actual bias 42 The Appeals Chamber finds that Gali ’s claim in relation to Judge Orie’s alleged compromised impartiality is not supported With respect to the argument that Judge Orie’s confirmation of the Mladi Indictment shows that the Judge predetermined his guilt Gali has failed to appreciate the fundamental difference between the functions of a Judge who confirms an indictment and a Judge who sits at trial Confirming an indictment requires the Judge to assess whether on the basis of the material submitted ex parte by the Prosecutor “there is evidence if accepted upon which a reasonable tribunal of fact could be satisfied beyond reasonable doubt of the guilt of the accused on the particular charge in question ”108 At this stage of the proceeding the Judge does not determine the guilt or the innocence of an accused nor is he or she engaged in a process of fully verifying the evidence or the alleged facts Conversely reaching a verdict at trial requires a determination in light of all the evidence brought by the parties of whether the Prosecution has established the accused’s guilt beyond a reasonable doubt Because these tasks involve different assessments of the evidence and different standards of review the confirmation of an indictment does not involve any improper pre-judgement of an accused’s guilt This conclusion is embodied in Rule 15 C of the Rules which provides that “ t he Judge of the Trial Chamber who reviews an indictment against an accused pursuant to Article 19 of the Statute and Rules 47 or 61 of the Rules shall not be disqualified for sitting as a member of the Trial Chamber for the trial of that accused” If the same Judge may without compromising his impartiality confirm an indictment and try the same case a Judge may a fortiori confirm an indictment in one case that may implicate an accused in another case and sit in the latter case 43 For the foregoing reasons the Appeals Chamber finds that Judge Orie’s confirmation of the Mladi Indictment did not establish actual bias b Whether Judge Orie’s continued participation as a trial Judge after confirming the Mladi Indictment would lead a reasonable and informed observer to apprehend bias 44 The Appeals Chamber must determine whether the reaction of the hypothetical fair-minded observer with sufficient knowledge of the circumstances to make a reasonable judgement would be that Judge Orie did not bring an impartial and unprejudiced mind to the issues arising in the 108 Čelebići Appeal Judgement para 434 See also Article 19 1 of the Statute Rule 47 E of the Rules 18 Case No IT-98-29-A 30 November 2006 case 109 Galić complains that by confirming the indictment against Ratko Mladić Judge Orie “publicly stated … that General Galić was also likely to be prosecuted as an accomplice to General Mladić as part of a joint criminal enterprise of genocide ”110 The Appeals Chamber however finds that a hypothetical fair-minded observer properly informed would recognise that Judge Orie’s confirmation of the Mladi Indictment neither represented a pre-judgement of Gali ’s guilt nor prevented him from assessing the evidence presented at Gali ’s trial with an open mind In particular a fair-minded observer would know that Judges’ training and professional experience engrain in them the capacity to put out of their mind evidence other than that presented at trial in rendering a verdict Judges who serve as fact-finders are often exposed to information about cases before them either through the media or from connected prosecutions Accordingly the Appeals Chamber considers that the allegation of apprehension of bias against Judge Orie based upon his prior confirmation of the Mladi Indictment is unfounded 45 109 110 For the foregoing reasons Gali ’s second ground of appeal is dismissed Čelebići Appeal Judgement para 697 Tali Decision on Disqualification and Withdrawal of a Judge para 15 AT 62 19 Case No IT-98-29-A 30 November 2006 V GROUND 3 THE TRIAL CHAMBER’S DECISION NOT TO TRAVEL TO SARAJEVO 46 Under his third ground of appeal Gali submits that the Trial Chamber erred in law by determining in its decision of 4 February 2003111 “On-site Visit Decision” that it was not necessary to travel to Sarajevo to view the alleged crime sites 112 He argues that later developments at trial demonstrated that this decision was erroneous and violated his right to a fair trial 113 He first asserts that the Trial Chamber erred in law when it assumed that it was impossible to guarantee his or the other parties’ safety during the visit claiming that the Trial Chamber placed the safety of the parties above the need to establish the truth 114 Second he argues that the Trial Chamber erroneously found that the evidence before it was sufficient to “form the picture of the terrain” 115 He claims that the picture of the terrain and the locations of the alleged incidents can only correctly be perceived when assessed in situ 116 He argues that the Trial Chamber “missed a reliable way of establishing beyond any reasonable doubt the relevant facts important for its decision” 117 Consequently he seeks reversal of the Trial Judgement 118 47 The Prosecution responds that the real issue is whether the Trial Chamber was in a position to determine the case without visiting the sites of the alleged crimes 119 With respect to Gali ’s argument that the Trial Chamber placed the safety of the participants above the truth the Prosecution submits that Gali ignored the Trial Chamber’s careful weighing of all relevant factors in deciding not to visit Sarajevo 120 The Prosecution argues that the Trial Chamber correctly exercised its discretion in balancing the serious security risks posed by Gali ’s presence against the probative value of a site visit 121 It further asserts that the Trial Chamber correctly held that only compelling reasons could legitimate a visit in the accused’s absence and then correctly reached the conclusion that a visit was not integral to the case 122 Finally the Prosecution argues that Gali has 111 Prosecutor v Stanislav Gali Case No IT-98-29-T Confidential Decision on Prosecution’s Motion for the Trial Chamber to Travel to Sarajevo 4 February 2003 “On-site Visit Decision” 112 Defence Appeal Brief paras 25-28 113 Defence Appeal Brief para 26 114 Defence Appeal Brief para 27 115 Defence Appeal Brief para 28 116 Defence Appeal Brief para 28 117 Defence Appeal Brief para 28 118 Defence Appeal Brief para 28 119 Prosecution Response Brief paras 3 4 3 8 120 Prosecution Response Brief para 3 7 121 Prosecution Response Brief para 3 9 122 Prosecution Response Brief para 3 13 referring to On-site Visit Decision para 17 20 Case No IT-98-29-A 30 November 2006 failed to show that the On-site Visit Decision led to erroneous factual findings by the Trial Chamber causing him prejudice 123 48 Gali replies that the Trial Chamber erred in balancing relevant factors in deciding whether or not to travel to Sarajevo since “the obligation to establish the truth is beyond and above all the possible reasons and there can be no balancing here” 124 He also argues that it cannot be said that an on-site visit has a relatively limited probative utility as those visits are of “utmost utility for creating a picture of the site” 125 A The Trial Chamber’s On-site Visit Decision 49 In its On-site Visit Decision the Trial Chamber agreed that in principle an accused should be present during such a visit 126 The Trial Chamber decided however that in light of the “characteristics of the case including the charges brought against Gali his former position in the VRS and the locations to be visited” it would not be possible to guarantee the safety of the parties and accompanying support staff 127 The Trial Chamber thus concluded that Galić’s presence “would pose an unacceptably high risk for the participants of the On-site Visit” and that “it should not order that an On-site Visit be undertaken in his presence” 128 The Trial Chamber went on to consider that such a visit in his absence would infringe his right to be tried in his presence129 and could thus be justified only if there were “compelling reasons” for the visit 130 It identified as the core question “what would an On-site Visit add to the evidence that has been already adduced at trial and can still be expected to be presented” 131 After conducting that assessment the Trial Chamber found that while such a visit could add information to its image of the terrain “the added value of such an Onsite Visit was not such that not having physically visited the locations would impair its ability to adopt the images of the terrain it would need to deliver a judgement in this case” 132 It added “The minimal expectations of what such an On-site Visit could add to the evidence presented by both parties at trial justifies that the Trial Chamber desists from such a visit ”133 123 Prosecution Response Brief paras 3 16 -3 21 Defence Reply Brief para 20 125 Defence Reply Brief para 21 fn 11 126 On-site Visit Decision para 11 127 On-site Visit Decision para 12 128 On-site Visit Decision para 13 129 On-site Visit Decision para 15 130 On-site Visit Decision para 16 131 On-site Visit Decision para 16 132 On-site Visit Decision para 17 133 On-site Visit Decision para 19 124 21 Case No IT-98-29-A 30 November 2006 B Validity of Galić’s ground of appeal 50 At the outset the Appeals Chamber notes that managerial decisions such as whether to make a site visit are left to the discretion of the Trial Chamber 134 The Appeals Chamber must thus ask whether the Trial Chamber has abused its discretion in concluding that “denying the Motion to Travel does not affect any of the Accused’s rights nor does it affect the Trial Chamber’s ability to decide upon the case against the Accused ”135 To help determine whether there was an abuse of discretion the Appeals Chamber expressly requested that at the Appeal Hearing Gali either explain what specific “later developments” at trial showed that the decision not to travel to Sarajevo was erroneous or point to specific issues that the Trial Judgement would have handled differently had there been a site visit 136 At the Appeal Hearing Galić did not clarify what he meant by “later developments” at trial As he failed to do so and as his brief was devoid of any specific arguments in this regard this ground of appeal is dismissed 51 Gali did however address the second part of the Appeals Chamber’s question arguing that had the Trial Chamber made a site visit it “would have been able to satisfy itself that Mojmilo Debelo Brdo Velika and Mala K apa part of Treb e vić and Žuč … were not really controlled by the SRK ”137 During his reply Gali clarified that had the Trial Chamber toured the Hrasno hill – specifically Ozrenska Street which the Prosecution claimed was the street from which the SRK targeted civilians – it would have found that this area was actually under control of the ABiH army and that there were still trenches in this area dug by the ABiH army 138 52 Specifically Gali submitted at the Appeal Hearing that in the areas of Hrasno Brdo where the SRK did have positions it would have been impossible for the SRK to have carried out sniping incidents 10 15 20 and 27 which would have necessarily led the Trial Chamber to conclude that he was not guilty for these four incidents 139 53 Regarding the above argument that the Trial Chamber would not have entered a conviction on the charge of murder under Count 2 if it had conducted a site visit the Appeals Chamber notes that the Trial Chamber specifically considered evidence for each of the incidents mentioned at the Appeal Hearing – sniping incidents 10 15 20 and 27 – and cited to the precise paragraphs in the 134 See Prliæ et al Decision on Interlocutory Appeal page 3 On-site Visit Decision para 20 136 See Scheduling Order for Appeal Hearing 14 August 2006 p 2 question 5 137 See AT 101-102 138 See AT 170 139 See AT 101-102 170 135 22 Case No IT-98-29-A 30 November 2006 Defence’s Final Trial Brief where the same impossibility arguments were presented 140 It is thus clear that the Trial Chamber thoroughly considered Gali ’s fact-specific arguments for each of the specified sniping incidents and rejected them only after considering whether it was possible for the incidents to have occurred at all – the same line of defence presented at the Appeal Hearing 54 In light of the above the Appeals Chamber finds that Gali has not demonstrated that the Trial Chamber abused its discretion in denying the Motion to Travel His third ground of appeal is accordingly dismissed 140 Trial Judgement paras 270 citing Defence Final Trial Brief paras 176-178 274 citing Defence Final Trial Brief paras 242-243 280 citing Defence Final Trial Brief para 303 288 citing Defence Final Trial Brief paras 433-435 23 Case No IT-98-29-A 30 November 2006 VI GROUNDS 4 13 AND 11 EVALUATION OF EVIDENCE A Grounds 4 and 13 evaluation of additional evidence 55 Under his fourth ground of appeal Gali alleges that the evidence disclosed by the Prosecution after the close of the trial pursuant to Rule 67 C of the Rules could have been exculpatory evidence governed by Rule 68 of the Rules 141 and that the Trial Chamber did not consider this evidence 142 He also contends that the Prosecution “did not offer convincing reasons for its belated disclosure” 143 Under his thirteenth ground Galić presents arguments referring to the same material alleging that had the evidence been disclosed earlier he would not have been placed “in an inequitable position and deprived … of the possibility to direct the Defence in the desired direction” 144 He contends that it was “simply impossible for the Defence to examine this material to discuss it to confront and compare the material with the evidence presented over 18 months almost of continuous hearings to have it translated for him and finally to meet with him all this over 13 days only” 145 The Prosecution responds that the submissions of the Defence are vague and fail to meet the standard on appeal to seek a remedy for alleged breaches of disclosure of exculpatory evidence pursuant to Rule 68 of the Rules 146 The Prosecution identifies “three items of evidence” which it believes the Defence is referring to 147 submits that those items are not exculpatory 148 and claims that in any case the Defence has not shown that Galić was prejudiced by the late disclosure 149 56 The Appeals Chamber notes that the arguments of Galić under these grounds of appeal were dealt with by the Trial Chamber in the Trial Judgement With regard to the additional material submitted by the Prosecution in August 2003 the Trial Chamber found upon review that “apart from one piece of evidence the evidence lately disclosed by the Prosecution is redundant or does not concern the Indictment” 150 The only piece of evidence it admitted was a video interview which it did not find exculpatory but rather took into account “for the purpose of a better understanding of the overall context of the conflict in Sarajevo during the Indictment period” 151 Galić’s argument that the Trial Chamber did not consider the material is therefore without merit The Appeals 141 Defence Appeal Brief para 29 Defence Appeal Brief para 30 143 Defence Appeal Brief para 30 144 Defence Appeal Brief para 161 145 Defence Appeal Brief para 162 146 Prosecution Response Brief para 4 2 147 Prosecution Response Brief para 13 2 148 Prosecution Response Brief para 13 4 149 Prosecution Response Brief para 13 5 150 Trial Judgement para 180 151 Trial Judgement para 180 142 24 Case No IT-98-29-A 30 November 2006 Chamber also finds that Galić’s argument that he did not have enough time to consider this material is without merit If he needed additional time to consider the material he could have requested that additional time from the Trial Chamber but he did not do so The Appeals Chamber recalls in this respect that as a general principle an appellant “cannot remain silent on a matter only to return on appeal to seek a trial de novo” 152 The same applies to the material disclosed by the Prosecution in November 2003 With respect to this material the Appeals Chamber notes that the Trial Chamber “refrain ed from any decision” on whether it was exculpatory because the Defence remained silent after being asked to give its position on the material 153 The Appeals Chamber could dismiss those grounds of appeal for which Galić remained silent at trial for this reason alone In any case Galić did not meet the requirements on appeal to establish that a remedy was warranted for the Prosecution’s alleged breach of its disclosure obligations pursuant to Rule 68 which are i that the Prosecution has acted in violation of its obligations under Rule 68 and ii that the Defence’s case suffered material prejudice as a result 154 57 In light of the foregoing Galić’s fourth and thirteenth grounds of appeal are dismissed B Ground 11 appraisal of evidence and testimonies 58 Galić alleges that the Trial Chamber did not assess the evidence and the testimonies of witnesses “with full impartiality” 155 He says that the problem relates to the methodology used by the Trial Chamber which he claims reached its findings “along the principle ‘from general to particular’ and not ‘from particular to general’” 156 Under this ground of appeal Galić makes arguments relating to whether he ordered the crimes charged 157 whether there was a campaign to target civilians 158 and whether the issue of collateral damage was contemplated 159 Those issues touch upon grounds 18 15 and 12 respectively and will accordingly be dealt with later in this Judgement 152 Tadić Appeal Judgement para 55 cited in Kambanda Appeal Judgement para 25 See also Čelebići Appeal Judgement para 640 Furundžija Appeal Judgement para 174 Akayesu Appeal Judgement para 361 153 Trial Judgement para 180 154 Krstić Appeal Judgement para 153 See also Akayesu Appeal Judgement para 340 155 Defence Notice of Appeal paras 74-75 156 Defence Appeal Brief para 118 157 Defence Appeal Brief paras 129 133-134 Defence Reply Brief paras 101-110 158 Defence Appeal Brief paras 120 126 See also Defence Reply Brief para 98 159 Defence Appeal Brief para 127 25 Case No IT-98-29-A 30 November 2006 1 General argument 59 Galić’s main argument is that the Trial Chamber inferred from general evidence of incidents that particular incidents were proven thereby ignoring that what “must be proved beyond any reasonable doubt is that an incident really took place and that this incident was criminal” 160 The Prosecution responds that the Trial Chamber did not draw its factual conclusions by accepting “evidence of generalisations” in order to draw conclusions as to specific incidents but rather considered the evidence before it in its totality 161 60 Galić’s argument fails to demonstrate where the Trial Chamber improperly inferred incidents were proved beyond reasonable doubt To the contrary the Trial Judgement shows that the Trial Chamber made clear that it assessed the evidence for each of the scheduled incidents giving “particular attention to questions of distance between the victim and the most probable source of fire distance between the location where the victim was hit and the confrontation line combat activity going on at the time and the location of the incident as well as relevant nearby presence of military activities or facilities appearance of the victim as to age gender clothing the activity the victim could appear to be engaged in visibility of the victim due to weather unobstructed line of sight or daylight” 162 Accordingly this part of Galić’s ground of appeal is dismissed 2 Testimonies of UNPROFOR witnesses 61 Galić argues that the evidence proffered by the members of UNPROFOR consisted of only “assumptions” since “ n one of them testified about any specific incident” and they were “unable to precisely indicate places time or circumstances in which any alleged incident nonscheduled should allegedly have taken place” 163 He draws the attention of the Appeals Chamber to the evidence of General van Baal Mr Harding Baron van Lynden Commandant Hamill Dr Mandilovi and Mr Heneberry and contends that “ t hese witnesses would not be accepted as reliable ones by any reasonable trier of fact and were not admitted by the Trial Chamber trying the Milosević case” 164 He claims that their evidence “cannot serve as a ground for establishing beyond any reasonable doubt that there was deliberate shelling or sniping against civilians with the intent to spread terror on civilian populations” 165 The Prosecution responds that those witnesses 160 Defence Appeal Brief para 119 See also Defence Reply Brief para 93 Prosecution Response Brief para 11 4 162 Trial Judgement para 188 163 Defence Appeal Brief para 121 164 Defence Appeal Brief para 121 165 Defence Appeal Brief para 122 161 26 Case No IT-98-29-A 30 November 2006 gave “‘stand alone’ evidence of specific incidents observed by them at first hand” and that “ t here was conclusive evidence for many of these incidents that the victim was a civilian that there was no reasonable possibility of the intended victim being perceived as other than a civilian … and that the source of fire was from territory held by Gali ’s subordinate forces” 166 The Prosecution further responds that when the Trial Chamber referred to evidence of a general nature “those observations were reliable as to their accuracy of recounting” and that “there was no reasonable possibility of the firing having been intended to hit a military target” 167 62 The Appeals Chamber notes that in his Appeal Brief Galić pointed to the evidence of many UNPROFOR witnesses but failed to refer to specific parts of their evidence He alleges broadly that their evidence amounted to “assumptions” or that they did not refer to any specific incident but does not provide concrete examples in support The only specific reference is found in the Defence Reply Brief in which he identifies the evidence of Witness Harding as illustrative of the “ambiguity of evidence given by these witnesses” 168 He argues that this witness testified about the presence of “militia” wearing civilian clothes169 and explains that this is “yet another proof that further facts must be established regarding the status of the alleged victims without limiting the establishment of status of a victim on the basis of clothing only” 170 He argues that the Prosecution did not prove the status of the victims in the non-scheduled incidents “except for a generalized statement by the witness that civilians had perished” 171 As this is the only specific reference he identifies in support of the broad allegation that UNPROFOR witnesses gave evidence based on assumptions Galić has failed to substantiate the arguments he made in his Notice of Appeal and his Appeal Brief Further his argument that Witness Harding could not differentiate between civilians and combatants is taken out of context Witness Harding was asked whether he could define what a “militia” was to which he answered that a militia “would be a group of people drawn into a conflict working to a common aim commanded by a common headquarters and undertaking military training” 172 He said militia members in Sarajevo did not always wear uniforms but also stated that they were armed when “active on the front” 173 The Appeals Chamber cannot see how such testimony is illustrative of the fact that the Prosecution did not prove that the victims were civilians and Galić fails to point to any specific part of the Trial Judgement where the Trial Chamber did not properly satisfy itself that the victims were civilians Galić further argues that Harding’s evidence on one of the events is not 166 Prosecution Response Brief para 11 6 Prosecution Response Brief para 11 7 168 Defence Reply Brief para 94 169 Defence Reply Brief para 94 referring to T 6429 lines 5-8 170 Defence Reply Brief para 94 171 Defence Reply Brief para 95 172 T 6428-6429 173 T 6429 167 27 Case No IT-98-29-A 30 November 2006 reliable as it does not indicate the time when it occurred 174 The part of the transcript referred to by Galić relates to a case of sniping against the witness himself While it is true that Witness Harding did not remember the precise date he was the target of sniping 175 Galić does not show how any findings of fact were undermined by that testimony That is Galić fails to show any findings of fact that became unreasonable in the absence of Witness Harding's testimony Galić’s argument under this part of the eleventh ground of appeal therefore fails 3 Alleged lack of impartiality 63 Galić argues that the “guarantee of impartiality … prescribed in Article 21 of the Statute fair and public trial and in Rule 14” was violated as the Judges did not evaluate the evidence and testimonies of the witnesses with full impartiality 176 He argues that this lack of impartiality is especially clear at paragraph 717 of the Trial Judgement where the Trial Chamber “concluded its very brief review of matter establishing whether Gali had undertaken all reasonable measures to prevent crimes by stating that he ‘may have issued orders to abstain not to attack civilians’” 177 Gali contends that such a finding “clearly means that the Trial Chamber found that orders were given to attack civilians” 178 The Prosecution responds that this argument does not go to “lack of impartiality” and that in any case the Trial Chamber was entitled to make a finding that Gali ordered that civilians be attacked which it did at paragraph 742 of the Trial Judgement 179 64 Galić notes that his fundamental right to a fair trial as enshrined in Article 21 of the Statute is inter alia guaranteed by the requirement in Article 13 1 of the Statute and Rule 14 of the Rules that the Judges be impartial A Judge should be disqualified if it is demonstrated that there is actual bias or there is an “unacceptable appearance of bias” 180 In the present case Galić does not attempt to show any bias on the part of the Judges but argues only that they failed to recognise that he gave orders not to attack civilians claiming that he had “clearly proved that permanent orders were issued to the troops not to open fire on civilians” 181 The Appeals Chamber notes that the Trial Chamber did assess the evidence adduced by Galić and accepted that orders were given to that effect 182 In any case to the extent that Galić’s arguments under this part of his eleventh ground of 174 Defence Reply Brief paras 95-96 T 6480-6481 176 Defence Appeal Brief paras 130-131 177 Defence Appeal Brief para 132 See also Defence Appeal Brief para 135 178 Defence Appeal Brief para 132 179 Prosecution Response Brief para 11 11 180 Furundžija Appeal Judgement para 189 181 Defence Appeal Brief para 133 182 See Trial Judgement paras 565 707 175 28 Case No IT-98-29-A 30 November 2006 appeal attempt to challenge the Trial Chamber’s finding that he ordered that civilians be attacked those will be addressed below under his tenth ground of appeal 65 For the foregoing reasons this part of Galić’s ground of appeal is dismissed 4 The Total Exclusion Zone TEZğ agreement and the impossibility to conduct a campaign of shelling 66 Galić argues that the Trial Chamber erred when it found him “guilty of crimes which form part of a single campaign committed in a geographically limited territory over an uninterrupted period of time” 183 whereas “already in February 1994 the TEZ was efficiently implemented in Sarajevo and the shelling of Sarajevo was practically rendered impossible” 184 He further argues that “ p ractically not a single shelling incident was technically examined during trial” for the first part of the Indictment from September 1992 to June 1993 185 The Prosecution responds that Galić misunderstood the Trial Chamber’s finding as the Trial Chamber in any case found that there had been ceasefires and that there were fluctuations in the intensity of sniping and shelling 186 It submits accordingly that the word “uninterrupted” was not meant to suggest that the shelling and sniping took place throughout the entire day and every day 187 Further it submits that Galić’s argument that the implementation of the TEZ agreement rendered shelling impossible as he had no shelling weaponry within range of the city is misleading188 as this agreement only concerned heavy weaponry and did not include mortars lighter than 81mm and infantry weapons such as machine guns and rifles 189 Further the Prosecution contends that Galić did not fully comply with the TEZ agreement 190 67 The Appeals Chamber first notes that contrary to Galić’s claim although no scheduled incident of shelling concerned the period prior to June 1993 abundant evidence was nevertheless adduced that the shelling was “fierce in 1992 and 1993” 191 Further the finding of the Trial Chamber concerned not only shelling incidents but also sniping incidents for which in addition to Scheduled Sniping Incident number two of 13 December 1992 192 a plethora of evidence was also 183 Trial Judgement para 768 Defence Appeal Brief para 137 185 Defence Appeal Brief para 138 186 Prosecution Response Brief para 11 18 187 Prosecution Response Brief para 11 19 188 Prosecution Response Brief para 11 21 189 Prosecution Response Brief para 11 22 190 Prosecution Response Brief para 11 22 191 Trial Judgement para 561 For evidence of shelling within that period see for example Trial Judgement paras 215 220 231 244-245 329 369 414 435 498-509 568 639 192 Trial Judgement paras 532-537 184 29 Case No IT-98-29-A 30 November 2006 adduced 193 With regard to Galić’s interpretation of the finding of the Trial Chamber the Appeals Chamber notes that the word “uninterrupted” does not mean the Trial Chamber considered that the campaign of sniping and shelling took place all day and every day The Trial Chamber found there were changes in the intensity of the shelling and sniping throughout the period of the Indictment 194 The Trial Chamber also found on many occasions there had been ceasefires during the period of the Indictment but ceasefires did not always prevent civilians from being targeted 195 With regard to the TEZ plan the Trial Chamber found that the agreement was complied with and that witnesses testified that following the Markale incident of 5 February 1994 the shelling of the city ceased “almost completely for some weeks” 196 The Appeals Chamber therefore need not consider whether the TEZ agreement rendered shelling impossible as no such shelling is referred to by the Trial Chamber for that period However this finding does not undermine the finding of the Trial Chamber that Galić “is guilty of crimes which form part of a single campaign committed in a geographically limited territory over an uninterrupted period of time” 197 68 For the foregoing reasons Galić’s eleventh ground of appeal is dismissed 193 See e g Trial Judgement paras 229-230 234 236-238 244-245 348 414 See Trial Judgement paras 561 590 195 Trial Judgement paras 251 255-256 287 311 362-364 630 687 713 See also Trial Judgement para 734 “The Majority is satisfied beyond reasonable doubt that orders were periodically given in the SRK’s chain of command to decrease sniping fire against the civilian population ” 196 Trial Judgement para 562 197 Trial Judgement para 768 194 30 Case No IT-98-29-A 30 November 2006 VII GROUNDS 5 16 AND 7 THE CRIME OF ACTS OR THREATS OF VIOLENCE THE PRIMARY PURPOSE OF WHICH IS TO SPREAD TERROR AMONG THE CIVILIAN POPULATION 69 The crime charged under Count 1 of the Indictment pursuant to Article 3 of the Statute and on the basis of Article 51 2 of Additional Protocol I and Article 13 2 of Additional Protocol II is the crime of acts or threats of violence the primary purpose of which is to spread terror among the civilian population It encompasses the intent to spread terror when committed by combatants198 in a period of armed conflict The findings of the Appeals Chamber with respect to grounds five sixteen and seven will therefore not envisage any other form of terror A Grounds 5 and 16 the alleged reclassification by the Trial Chamber of the crime charged of “infliction of terror” among the civilian population to “intent to spread terror” among the civilian population and the principle of in dubio pro reo 70 Galić alleges under his fifth ground of appeal that the Prosecution charged “infliction of terror” among the civilian population in Count 1 of the Indictment but the Trial Chamber impermissibly convicted him of acts of violence with the intent to spread terror among the civilian population thereby going beyond the scope of the Indictment and violating his right to a fair trial pursuant to Article 21 of the Statute 199 He argues that “ i n the majority of the legal systems a trial chamber is bound by the charges stated in the indictment” and that the Trial Chamber “has no power to change the description of the criminal acts charged against the accused” 200 Gali claims that he has been convicted of an offence for which he has not been charged 201 The Prosecution responds that Galić “misstates the situation” as “ t here was no doubt throughout the course of the trial that the offence at issue was drawn from the prohibition of terror in Article 51 2 of Additional Protocol I and Article 13 of Additional Protocol II ” 202 It claims that while a Trial Chamber must confine itself to the charges set out in an indictment it is not bound to accept the elements of the crimes charged 203 In his reply Galić maintains that he was sentenced for a different offence than that charged requiring “a different set of evidence for completely different elements” 204 and that the Trial Chamber thereby “violated the Indictment” 205 198 See Kordić and Čerkez Appeal Judgement para 50 Defence Notice of Appeal paras 11-14 See also Defence Appeal Brief para 32 200 Defence Appeal Brief para 31 201 Defence Appeal Brief para 32 See also AT 63-64 97 202 Prosecution Response Brief para 5 2 203 Prosecution Response Brief para 5 3 204 Defence Reply Brief para 32 199 31 Case No IT-98-29-A 30 November 2006 1 Whether the Trial Chamber impermissibly departed from the charge stated in the Indictment 71 Article 19 1 of the Statute and Rules 47 E and F of the Rules provide that on receipt of an indictment for review from the Prosecutor the confirming Judge must determine whether there is a prima facie case against the subject of the indictment in relation to each count alleged in that indictment The review of an indictment by a Judge involves two steps 1 the Judge makes an assessment whether on the face of the indictment it is alleged that the suspect committed acts which if proven beyond reasonable doubt are crimes within the subject matter jurisdiction of the International Tribunal and 2 the Judge determines whether the evidence accompanying the indictment viewed in its totality establishes a prima facie case against the suspect in relation to each count alleged 206 While the Judge reviewing an indictment must assess whether the crimes charged fall within the jurisdiction of the International Tribunal the Judge does not have to make a final determination as to the precise elements of those crimes Similarily while the Prosecution may identify the elements of offences in the indictment it presents to the Judge for confirmation the only obligation set forth in Article 18 4 of the Statute and Rule 47 C of the Rules is that the indictment contain a concise statement of the facts of the case and of the crimes with which the suspect is charged The determination of the legal elements of the crimes charged in an indictment is as noted by the Prosecution 207 not a duty of the confirming Judge but the responsibility of the Trial Chamber which must ensure that pursuant to the nullum crimen sine lege principle an accused is only found guilty of a crime with respect to acts which constituted a violation of international humanitarian law at the time of their commission 208 In so ensuring the Trial Chamber is not bound to accept the elements of an offence as proposed by the parties but is responsible for determining those elements for itself 209 Accordingly the Trial Chamber’s holding that infliction of terror is not an element of the crime of terror against the civilian population210 was perfectly within its authority Indeed as the Prosecution correctly noted there are several cases before the International Tribunal in which a Trial Chamber or the Appeals Chamber decided not to adopt the elements of the crimes charged proposed by the Prosecution 211 In the Čelebići case for example the Appeals Chamber upheld the interpretation given by the Trial Chamber of the standard “had reason to know” and found that a superior will be criminally responsible as a superior only if information was available 205 Defence Reply Brief para 35 Prosecutor v Kordić et al Case No IT-95-14-I Decision on the Review of the Indictment 10 November 1995 Prosecutor v Zoran Marinić Case No IT-95-15-I Decision on the Review of the Indictment 10 November 1995 Prosecutor v Kupreškić et al Case No IT-95-16-I Decision on the Review of the Indictment 10 November 1995 207 Prosecution Reply Brief para 5 5 208 Stakić Appeal Judgement para 315 Kordić and Čerkez Appeal Judgement para 44 Tadić Jurisdiction Decision para 143 209 Aleksovski Appeal Judgement para 127 see also Čelebići Appeal Judgement para 173 210 Trial Judgement para 65 211 Prosecution Response Brief para 5 4 206 32 Case No IT-98-29-A 30 November 2006 to him which would have put him on notice of offences committed by subordinates 212 Similarly in the Kunarac case the Trial Chamber found contrary to the Prosecution’s submission 213 that “the presence of a state official or of any other authority-wielding person in the torture process is not necessary for the offence to be regarded as torture under international humanitarian law” 214 72 In the present case Galić was charged under Count 1 with “unlawfully inflicting terror upon civilians as set forth in Article 51 of Additional Protocol I and Article 13 of Additional Protocol II to the Geneva Conventions of 1949 as a violation of the laws or customs of war pursuant to Article 3 of the Statute” 215 The Trial Chamber noted in the Trial Judgement that the introductory paragraph to the Indictment reads “ i nfliction of terror” upon the civilian population of Sarajevo but it decided that “ i nfliction of terror” was “not an appropriate designation of the offence … because infliction of terror is not a required element of the offence” 216 The Trial Chamber found that proof of the offence required establishing that Galić committed “acts of violence the primary purpose of which is to spread terror among the civilian population as set forth in Article 51 of Additional Protocol I to the Geneva Conventions of 1949” 217 Under that definition infliction of terror on the civilian population was not an element of the crime charged In this circumstance it cannot be said that the Trial Chamber re-qualified the offence “in order to make the facts allegedly fit with an alleged crime” 218 Rather the Trial Chamber merely identified the elements that needed to be established for the crime to be made out 73 The Appeals Chamber therefore finds that while the Prosecution initially envisaged in its description of the charges in the Indictment that the crime of terror among the civilian population comprised actual infliction of terror the Trial Chamber was acting within the confines of its jurisdiction in determining that the elements of this crime do not comprise the actual infliction of terror on that population 74 The core issue remains however that the accused has to be properly informed of the nature and cause of the charges against him so that he can adequately prepare his defence 219 Indeed Galić 212 Čelebići Appeal Judgement para 241 upholding Čelebići Trial Judgement para 363 Prosecutor v Kunarac Case No IT-96-23-PT Prosecutor’s Pre-Trial Brief 9 December 1999 para 142 214 Kunarac et al Trial Judgement para 496 This finding was confirmed by the Appeals Chamber See Kunarac et al Appeal Judgement para 148 215 Trial Judgement para 64 216 Trial Judgement para 65 217 Trial Judgement para 769 218 Defence Appeal Brief para 33 219 The obligation of the Prosecution to set out concisely the facts of its case in the indictment must be interpreted in conjunction with Articles 21 2 and 21 4 a and b of the Statute which state that in the determination of the charges against him an accused is entitled to a fair hearing and more particularly has to be informed of the nature and cause of the charges against him and to have adequate facilities for the preparation of his defence See Prosecutor v Ivan Čermak and Mladen Markac Case No IT-03-73-PT Decision on Ivan Čermak and Mladen Markač’s Motion on Form 213 33 Case No IT-98-29-A 30 November 2006 argues that the finding of the Trial Chamber that the actual infliction of terror on the civilian population is not an element of the crime charged under Count 1 of the Indictment violates his “undisputed right to … prepare and organise his defence” 220 The Appeals Chamber does not agree Count 1 of the Indictment an offence for which Galić was convicted is taken verbatim from the wording of Article 51 of Additional Protocol I and Article 13 of Additional Protocol II In addition the Prosecution qualified in its Pre-Trial Brief the “special intent requirement” for the crime of terror among the civilian population as “the key distinguishing feature of this crime” 221 stating that “acts or threats of violence fall within the prohibition against deliberately inflicting terror only if they are unlawful and if the principal purpose of the acts or threats is to terrorise civilians” 222 Galić was therefore properly put on notice of the nature of the charges against him Further the Appeals Chamber notes that at the end of the Prosecution case Galić did not deny that terror was inflicted on the civilian population He submitted that terrorisation of the civilian population was a natural result of the urban warfare in Sarajevo and that the core issue was in fact whether he had the intent to use terror against the civilian population 223 Galić’s principal argument was that he did not intend to inflict terror on the civilian population and that he did not intend to inflict terror on the civilian population to gain military advantage 224 Therefore he cannot suggest that the intent to inflict terror on the civilian population was in any way an unforeseen requirement 75 For the foregoing reasons Galić’s fifth ground of appeal is dismissed 2 The principle of in dubio pro reo 76 Under his sixteenth ground of appeal Galić argues that the “re-classification”225 or “re- qualification”226 of the crime of acts or threats of violence the primary purpose of which is to spread terror among the civilian population violates the principle of in dubio pro reo which requires that “whenever there is doubt in establishing the credibility of some fact interpretation must be made in of Indictment 8 March 2005 para 5 Kupreškić et al Appeal Judgement para 88 Blaškić Appeal Judgement para 209 220 Defence Appeal Brief fn 22 221 Prosecution Pre-Trial Brief para 164 222 Prosecution Pre-Trial Brief para 169 See also ibid para 170 quoting the ICRC Commentary to Article 51 2 of Additional Protocol I to the effect that the type of prohibition under that Article envisages “acts of violence the primary purpose of which is to spread terror among the civilian population” that is excludes terror incidental to a state of war 223 T 13057 “I believe that we cannot deny that a civil war in an urban setting would naturally produce terror whoever happens to be there and certainly would have very good reasons to suffer from this terror from this fear But one would have to prove the will hierarchical will of the accused to use this fear this terror as means -- as military means against the population ” 224 T 13058 “Any shelling naturally will cause terror However this terror was not a weapon of war And I will give you proof and this is a very far-fetched proof ” Galić also stated in his Appeal Brief that he “was contesting from the beginning the allegation that there was an intent to spread terror among the civilian population” See Defence Appeal Brief fn 17 225 Defence Notice of Appeal para 99 226 Defence Appeal Brief para 249 34 Case No IT-98-29-A 30 November 2006 favour of the accused” 227 He contends that the existence of terror against the civilian population not having been proved beyond reasonable doubt at the end of the trial the Trial Chamber should have acquitted him of Count 1 of the Indictment 228 The Prosecution reiterates that there was no “requalification” of the offence but “simply a permissible clarification of its elements” 229 It says that the fact that the Trial Chamber decided that infliction of terror on the civilian population is not an element of the offence implies that “whether terror was inflicted has no determinative bearing on Gali ’s criminal responsibility under Count 1 and in dubio pro reo has no application” 230 77 The principle of in dubio pro reo dictates that any doubt should be resolved in favour of the accused and encompasses doubts as to whether an offence has been proved at the conclusion of a case 231 In the present case the question whether there could have been doubt as to the culpability of Galić is dependent on whether the actual infliction of terror is an element of the offence charged under Count 1 or not As will be shown below actual infliction of terror is not an element of the crime of acts or threats of violence the primary purpose of which is to spread terror among the civilian population as charged under Count 1 of the Indictment 232 Therefore Galić’s argument that the principle of in dubio pro reo was violated is moot 78 In his Appeal Brief Galić contends that the Trial Chamber “failed to proceed” in accordance with the principle of in dubio pro reo “in all the counts pronouncing him guilty”233 and argues that “ r egarding Counts 2 3 5 and 6 the same reasoning as the one regarding Count 1 applies mutatis mutandis” 234 In his Reply Brief Galić asserts that the Trial Chamber reached conclusions based on “assumptions” or on facts “not supported by firm proof” 235 and argues that the Trial Chamber in its assessment of “all the so-called scheduled incidents” violated the principle of in dubio pro reo 236 The Appeals Chamber notes that those arguments go beyond the scope of the Defence Notice of Appeal237 and therefore the Appeals Chamber is not required to consider them Further the Appeals Chamber recalls that in filing an appeal appellants have an obligation to set out their grounds of appeal clearly and to provide the Appeals Chamber with specific references to the 227 Defence Appeal Brief para 249 Defence Appeal Brief para 250 229 Prosecution Response Brief para 5 19 230 Prosecution Response Brief para 5 20 231 Prosecutor v Du ko Tadi Case No IT-94-1-A Decision on Appellant’s Motion for the Extension of the TimeLimit and Admission of Additional Evidence dated 15 October 1998 filed 16 October 1998 para 73 “ A ny doubt should be resolved in favour of the Appellant in accordance with the principle in dubio pro reo” elebi i Trial Judgement para 601 “ A t the conclusion of the case the accused is entitled to the benefit of the doubt as to whether the offence has been proved” 232 See below paras 103-104 233 Defence Appeal Brief para 251 234 Defence Appeal Brief para 251 235 Defence Reply Brief para 149 236 Defence Reply Brief para 150 228 35 Case No IT-98-29-A 30 November 2006 alleged errors of the Trial Judgement and the parts of the record they are using to support their case 238 In the present case Galić does not refer to any specific finding or ruling in the Trial Judgement This part of the sixteenth ground of appeal is dismissed B Ground 7 the crime of acts or threats of violence the primary purpose of which is to spread terror among the civilian population as a crime punishable under Article 3 of the Statute 79 Galić argues under his seventh ground of appeal that the Trial Chamber violated the principle of nullum crimen sine lege in convicting him under Count 1 He argues that the International Tribunal has no jurisdiction over the crime of acts or threats of violence the primary purpose of which is to spread terror among the civilian population as “there exists no international crime of terror” 239 He submits that the Trial Chamber erred in considering treaty law to be sufficient to give jurisdiction to the Tribunal which may only exercise jurisdiction over crimes under customary international law 240 In particular he submits that the Trial Chamber erred in finding that the 22 May 1992 Agreement was binding upon the parties to the conflict 241 Further he challenges the Trial Chamber’s finding with regard to the elements of the crime 242 Finally he argues that the Prosecution has not proved that the acts of “sniping” and “shelling” were carried out with the primary purpose of spreading terror among the civilian population 243 80 The Prosecution responds that Gali ’s argument that the crime of acts or threats of violence the primary purpose of which is to spread terror among the civilian population was previously unknown “ignores the jurisprudence of the Tribunal that has elucidated its parameters” 244 In particular the Prosecution asserts that Galić “fails to address the Appeals Chamber’s jurisprudence that a clearly applicable treaty-based provision is sufficient to satisfy the requirements of nullum crimen sine lege and that the principle does not prevent a court from developing within reasonable limits the elements of an offence” 245 With regard to the 22 May Agreement the Prosecution submits that Galić had the relevant information at trial and that as a result he has now waived his right to appeal on this point 246 With regard to Galić’s arguments that he did not act with the 237 The Defence should have sought leave to amend its Notice of Appeal pursuant to Rule 108 of the Rules Practice Direction on Appeals Requirements para 4 b see also Vasiljević Appeal Judgement para 12 239 Defence Notice of Appeal para 25 Similarly Galić also states that “there is no such … criminal offence in the customary law” “this alleged offence was never criminalized” and “such an alleged offence could not be based on treaty law” 240 Defence Notice of Appeal para 30 Defence Appeal Brief paras 58-59 241 Defence Appeal Brief para 60 242 Defence Notice of Appeal paras 40-41 243 Defence Notice of Appeal para 42 244 Prosecution Response Brief para 7 1 245 Prosecution Response Brief para 7 1 See also AT 115-120 246 Prosecution Response Brief paras 7 4-7 5 238 36 Case No IT-98-29-A 30 November 2006 required intent the Prosecution argues that this claim is “vague and unsupported” and fails to address the detailed reasoning of the Trial Chamber 247 The Prosecution claims that Galić “must do significantly more than make unsubstantiated claims in order to justify the intervention of the Appeals Chamber” it submits that his argument should be dismissed on that basis alone 248 1 Whether a crime under Article 3 of the Statute must be grounded in customary international law or can be based on an applicable treaty 81 Pursuant to Article 1 of the Statute the International Tribunal has jurisdiction over “serious violations of international humanitarian law” What is encompassed by “international humanitarian law” is however not specified in the Statute Some indication can be found in the Report of the Secretary-General recommending the establishment of the International Tribunal in which the Secretary-General explained that this body of law is comprised of both conventional law and customary international law This body of law exists in the form of both conventional law and customary law While there is international customary law which is not laid down in conventions some of the major conventional humanitarian law has become part of customary international law 249 To avoid “the problem of adherence of some but not all States to specific conventions” and to respect the principle of nullum crimen sine lege the Secretary-General then added that the International Tribunal was expected to apply “rules of international humanitarian law which are beyond any doubt part of customary law” 250 82 When first seized of the issue of the scope of its jurisdiction ratione materiae the International Tribunal interpreted its mandate as applying not only to breaches of international humanitarian law based on customary international law but also to those based on international instruments entered into by the conflicting parties – including agreements concluded by conflicting parties under the auspices of the ICRC to bring into force rules pertaining to armed conflicts251 – provided that the instrument in question is i … unquestionably binding on the parties at the time of the alleged offence and ii … not in conflict with or derogat ing from peremptory norms of 247 Prosecution Response Brief para 7 2 Prosecution Response Brief para 7 2 249 Report of the Secretary-General ICTY para 33 250 Report of the Secretary-General ICTY para 34 251 See elebi i Appeal Judgement para 44 248 37 Case No IT-98-29-A 30 November 2006 international law as are most customary rules of international humanitarian law 252 83 However while conventional law can form the basis for the International Tribunal’s jurisdiction provided that the above conditions are met an analysis of the jurisprudence of the International Tribunal demonstrates that the Judges have consistently endeavoured to satisfy themselves that the crimes charged in the indictments before them were crimes under customary international law at the time of their commission and were sufficiently defined under that body of law This is because in most cases treaty provisions will only provide for the prohibition of a certain conduct not for its criminalisation or the treaty provision itself will not sufficiently define the elements of the prohibition they criminalise and customary international law must be looked at for the definition of those elements In the Kordić and Čerkez case for example while the Trial Chamber held that “the International Tribunal … has jurisdiction over violations which are prohibited by international treaties” 253 it based itself on customary international law to determine that the conduct gave rise to individual criminal responsibility 254 On appeal the Appeals Chamber followed the same approach It confirmed that a treaty can serve as a basis for the International Tribunal’s jurisdiction 255 but had recourse to customary international law to establish that individual criminal responsibility attached to the prohibition of attacks directed against the civilian population 256 84 In recent judgements the Appeals Chamber also had recourse to customary international law because the elements of the crimes or the modes of liability were not defined or not defined sufficiently in conventional law In Stakić for example the Appeals Chamber rejected the mode of liability of “co-perpetratorship” as defined and applied by the Trial Chamber as having no support in customary international law or in the jurisprudence of the International Tribunal in favour of joint criminal enterprise which it found to be “firmly established in customary international law” 257 The Appeals Chamber in that case also relied on customary international law for the 252 Tadić Jurisdiction Decision para 143 Kordić and Čerkez Trial Judgement para 167 citing Tadi Jurisdiction Decision para 143 254 When it addressed the issue of whether the conventional prohibition of attacks on civilians and civilians objects as embodied in Articles 51 2 and 52 1 of Additional Protocol I entailed individual criminal responsibility the Trial Chamber relied by analogy on the finding of the Appeals Chamber at paragraph 134 of the Tadić Jurisdiction Decision that “customary international law imposes criminal liability for serious violations of common Article 3” See Kordić and Čerkez Trial Judgement para 168 The Trial Chamber also recalled its previous decision in which it held that those articles belonged to customary international law Prosecutor v Dario Kordi and Mario Čerkez Case No IT-95-14 2PT Decision on Joint Defense Motion to Dismiss the Amended Indictment for Lack of Jurisdiction Based on the Limited Jurisdictional Reach of Articles 2 and 3 2 March 1999 para 31 255 Kordić and Čerkez Appeal Judgement paras 41-42 256 Kordić and Čerkez Appeal Judgement paras 59-66 257 Stakić Appeal Judgement para 62 quoting Tadić Appeal Judgement para 220 253 38 Case No IT-98-29-A 30 November 2006 elements of the crimes of extermination258 and deportation 259 In Naletili and Martinovi the Appeals Chamber relied on customary international law for its finding that the existence of an armed conflict is an element of crimes under Articles 2 and 3 of the Statute 260 85 The Appeals Chamber rejects Galić’s argument that the International Tribunal’s jurisdiction for crimes under Article 3 of the Statute can only be based on customary international law However while binding conventional law that prohibits conduct and provides for individual criminal responsibility could provide the basis for the International Tribunal’s jurisdiction in practice the International Tribunal always ascertains that the treaty provision in question is also declaratory of custom 2 The crime of acts or threats of violence the primary purpose of which is to spread terror among the civilian population 86 On appeal Gali argued that the 22 May 1992 Agreement was not binding on the parties261 and even if binding did not give rise to individual criminal responsibility on the part of the parties 262 The Appeals Chamber does not consider it necessary to address this argument on the ground that as will be demonstrated below it is satisfied that the prohibition of terror against the civilian population as enshrined in Article 51 2 of Additional Protocol I and Article 13 2 of Additional Protocol II was a part of customary international law from the time of its inclusion in those treaties The Appeals Chamber by majority Judge Schomburg dissenting is further satisfied that a breach of the prohibition of terror against the civilian population gave rise to individual criminal responsibility pursuant to customary international law at the time of the commission of the offences for which Galic was convicted a The prohibition of terror against the civilian population in customary international law 87 In the present case the crime of acts or threats of violence the primary purpose of which is to spread terror among the civilian population was charged under Article 3 of the Statute on the 258 Stakić Appeal Judgement para 260 “ T here is no support in customary international law for the requirement of intent to kill a certain threshold number of victims … ” 259 Stakić Appeal Judgement para 300 “In general the question whether a particular de facto border is sufficient for the purposes of the crime of deportation should be examined on a case by case basis in light of customary international law” ibid para 301 “ I t is necessary to examine whether customary international law would support a finding that ‘constantly changing frontlines’ may amount to de facto borders sufficient for the purposes of the crime of deportation ” See also ibid paras 302-303 260 Naletili and Martinovi Appeal Judgement para 120 “ T he 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 ” 261 Defence Appeal Brief para 60 See also AT 65 262 Defence Appeal Brief para 63 39 Case No IT-98-29-A 30 November 2006 basis of Article 51 2 of Additional Protocol I and Article 13 2 of Additional Protocol II both of which state The civilian population as such as well as individual civilians shall not be the object of attack Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited Article 51 of Additional Protocol I was adopted with 77 votes in favour one against and 16 abstentions 263 Neither France which voted against nor the States that abstained from voting expressed any concern as to the content of the prohibition contained in Article 51 2 The only concerns expressed were confined to paragraphs 4 5 7 and 8 of this Article 264 Article 13 of Additional Protocol II which incorporates the first three paragraphs of Article 51 of Additional Protocol I was adopted by consensus 265 The purposes of Additional Protocols I and II as expressly stated by the High Contracting Parties in the preambles to those treaties were to “reaffirm and develop the provisions protecting the victims of armed conflicts”266 and “to ensure a better protection for the victims” of armed conflicts 267 Additional Protocol II further is considered to embody the “fundamental principles on protection for the civilian population” 268 Articles 51 2 of Additional Protocol I and 13 2 of Additional Protocol II in essence contribute to the purpose of those treaties They do not contain new principles but rather codify in a unified manner269 the prohibition of attacks on the civilian population The principles underlying the prohibition of attacks on civilians namely the principles of distinction and protection have a long-standing history in international humanitarian law 270 These principles incontrovertibly form the basic foundation of international humanitarian law271 and constitute “intransgressible principles of international customary law” 272 As the Appeals Chamber has held in previous decisions the conventional prohibition on attack on civilians contained in Articles 51 of Additional Protocol I and 263 Travaux préparatoires Vol VI p 163 para 118 Travaux préparatoires Vol VI pp 164-168 187-188 265 Travaux préparatoires Vol VII p 134 para 76 266 Additional Protocol I Preamble 267 Additional Protocol II Preamble 268 ICRC Commentary Additional Protocols paras 4762 4764 269 The prohibition of terror was first discussed during the travaux préparatoires with regard to Additional Protocol I but was then discussed together with the same provision in Additional Protocol II See Travaux préparatoires Vol XIV pp 59-75 270 The necessary distinction between civilians and combatants was made as early as three-and-a-half centuries ago by Grotius in De Jure Belli Ac Pacis 1625 It was later maintained in the Lieber Code of 24 April 1863 at Articles 23 and 25 271 In its Advisory Opinion on the Legality of Nuclear Weapons the International Court of Justice “ICJ” described the principle of distinction and the principle of protection of the civilian population as “the cardinal principles contained in the texts constituting the fabric of humanitarian law” and stated that “States must never make civilians the object of attack ” Nuclear Weapons Case para 78 272 Nuclear Weapons Case para 78 The principle of distinction is further set out among other places in Article 48 of Additional Protocol I which states that the warring parties must “at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives” See also Kordić and Čerkez Appeal Judgement para 54 264 40 Case No IT-98-29-A 30 November 2006 13 of Additional Protocol II constitutes customary international law 273 In so holding the Appeals Chamber has made no distinction within those articles as to the customary nature of each of their respective paragraphs In light of the above and considering that none of the States involved in the Diplomatic Conference leading to the adoption of both Protocols expressed any concern as to the first three paragraphs of Article 51 of Additional Protocol I and as Article 13 of Additional Protocol II was adopted by consensus the Appeals Chamber considers that at a minimum Article 51 1 2 and 3 of Additional Protocol I and Article 13 of Additional Protocol II in its entirety constituted an affirmation of existing customary international law at the time of their adoption The Appeals Chamber therefore affirms the finding of the Trial Chamber that the prohibition of terror as contained in the second sentences of both Article 51 2 of Additional Protocol I and Article 13 2 of Additional Protocol II amounts to “a specific prohibition within the general customary prohibition of attack on civilians” 274 88 The Appeals Chamber found further evidence that the prohibition of terror among the civilian population was part of customary international law from at least its inclusion in the second sentences of both Article 51 2 of Additional Protocol I and Article 13 2 of Additional Protocol II The 1923 Hague Rules on Warfare prohibited “ a ny air bombardment for the purpose of terrorizing the civil population or destroying or damaging private property without military character or injuring non-combatants” 275 Similarly the 1938 Draft Convention for the Protection of Civilian Populations against New Engines of War expressly prohibited “ a erial bombardment for the purpose of terrorising the civilian population” 276 Even more importantly Article 33 of Geneva Convention IV an expression of customary international law 277 prohibits in clear terms “measures of intimidation or of terrorism”278 as a form of collective punishment as they are “opposed to all principles based on humanity and justice” 279 Further Article 6 of the 1956 New Delhi Draft Rules for protection of civilians states that “ a ttacks directed against the civilian population as such 273 See Strugar et al Jurisdiction Decision para 9 see also Prosecutor v Enver Had ihasanovi Mehmed Alagi and Amir Kubura Case No IT-01-47-AR73 3 Decision on Joint Defence Interlocutory Appeal of Trial Chamber Decision on Rule 98bis Motions for Acquittal 11 March 2005 para 28 274 Trial Judgement para 98 275 Rules Concerning the Control of Wireless Telegraphy in Time of War and Air Warfare Article 22 The Rules were drafted by a Commission of Jurists at the Hague from December 1922 to February 1923 This Commission was composed of representatives of the United States France Great Britain Italy Japan and The Netherlands It prepared rules for the control of radio in time of war part I of the report of the Commission and rules of air warfare part II Although these rules were never adopted in legally binding form they are of importance “as an authoritative attempt to clarify and formulate rules of law governing the use of aircraft in war” Hersch Lauterpacht ed Oppenheim’s International Law 7th Edition Vol 2 London Longman Green 1952 p 519 276 Draft Convention for the Protection of Civilian Populations Against New Engines of War Amsterdam 1938 This draft convention was prepared by a committee of the International Law Association and approved in principle by the Fortieth Conference of the Association in 1938 277 See Blaškić Appeal Judgement para 145 Krnojelac Appeal Judgement para 220 elebi i Appeal Judgement para 113 See also Report of the Secretary-General ICTY para 35 278 Fourth Geneva Convention Article 33 41 Case No IT-98-29-A 30 November 2006 whether with the object of terrorizing it or for any other reason are prohibited ”280 More recently Article 6 of the 1990 Turku Declaration of Minimum Humanitarian Standards envisaged that “ a cts or threats of violence the primary purpose or foreseeable effect of which is to spread terror among the population are prohibited ”281 89 Another indication of the customary international law nature of the prohibition of terror at the time of the events alleged in this case can be found in the number of States parties to Additional Protocols I and II by 1992 282 Also references to official pronouncements of States and their military manuals further confirm the customary international nature of the prohibition 283 With respect to official pronouncements the Appeals Chamber notes that the United States a non-party to Additional Protocol I expressed in 1987 through the deputy Legal Adviser to the US Department of State its support for the “principle that the civilian population as such as well as individual citizens not be the objects of acts or threats of violence the primary purpose of which is to spread terror amongst them” 284 Similarly in 1991 in response to an inquiry of the ICRC as to the application of international humanitarian law in the Gulf region the US Department of the Army pointed out that its troops were acting in respect of the prohibition of acts or threats of violence the main purpose of which was to spread terror among the civilian population 285 With respect to military manuals the Appeals Chamber notes that a large number of countries have incorporated provisions prohibiting terror as a method of warfare 286 some of them in language similar to the prohibition set out in the Additional Protocols 287 or even verbatim 288 279 ICRC Commentary GC IV p 226 Draft Rules for the Limitation of the Dangers Incurred by the Civilian Population in Time of War ICRC 1956 The Draft Rules were drawn up by the ICRC with the help of experts and submitted to the 19th Conference of the Red Cross which took place in New Delhi in 1957 Although those draft rules did not lead to concrete steps it is particularly noteworthy that many of the provisions therein resemble provisions finally adopted in Additional Protocols I and II 281 Declaration of Minimum Humanitarian Standards reprinted in Report of the Sub-Commission on Prevention of Discrimination and Protection of Minorities on its Forty-sixth Session Commission on Human Rights 51st Sess Provisional Agenda Item 19 at 4 U N Doc E CN 4 1995 116 1995 Turku Declaration 282 By 1992 as correctly noted by the Trial Chamber there were around 191 States in the world 118 of which had ratified Additional Protocol I and 108 of which had ratified Additional Protocol II 283 Tadić Jurisdiction Decision para 99 284 Remarks of Michael J Matheson Deputy Legal Adviser US Department of State The Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions American University Journal of International Law and Policy Vol 2 1987 p 426 285 Letter from the Department of the Army to the Legal Adviser of the US Army Forces Deployed in the Gulf Region 11 January 1991 § 8 F Report on US Practice 1997 ch 1 4 cited in Henckaerts J-M and Doswald-Beck L Customary International Humanitarian Law Volume II Cambridge 2005 p 73 See also ibid § 4 B 6 “Acts or threats of violence the main purpose of which is to spread terror among the civilian population are prohibited ” 286 See e g Belgium Le Droit de la Guerre Dossier d’Instruction pour Soldats à l’attention des officiers instructeurs JS3 Etat-Major Général Forces Armées Belges Teaching Manual for Soldiers p 14 Belgium Droit Pénal et Disciplinaire Militaire et Droit de la Guerre Deuxième Partie Droit de la Guerre Ecole Royale Militaire par J Maes Chargé de cours Avocat-Général près la Cour Militaire D 1983 1187 029 1983 Law of War Manual p 31 Cameroon Droit International Humanitaire et Droit de la Guerre Manuel de l’Instructeur en vigueur dans les Forces Armées Présidence de la République Ministère de la Défense Etat-Major des Armées Trosième Division Edition 280 42 Case No IT-98-29-A 30 November 2006 1992 Instructors’ Manual p 152 Croatia Compendium « Law of Armed Conflicts » Republic of Croatia Ministry of Defence 1991 Law of Armed Conflicts Compendium p 40 France Fiche de Synthèse sur les Règles Applicables dans les Conflits Armés Note No 432 DEF EMA OL 2 NP Général de Corps d’Armée Voinot pour l’Amiral Lanxade Chef d’Etat-Major des Armées 1992 Law of Armed Conflict Summary Note para 4 1 Germany Humanitarian Law in Armed Conflicts Manual DSK VV207320067 edited by The Federal Ministry of Defence of the Federal Republic of Germany VR II 3 August 1992 English Translation of ZDv 15 2 Humanitäres Völkerrecht in bewaffneten Konflikten Handbuch August 1992 Military Manual para 507 Hungary A Hadijog Jegyzet a Katonai Föiskolák Hallgatói Részére Magyar Honvédség Szolnoki Repülötiszti Föiskola 1992 Military Manual page 64 Nigeria The Laws of War By Lt Col L Ode PSC Nigerian Army Lagos undated Manual on the Laws of War para 20 Russia Instructions on the Application of the Rules of International Humanitarian Law by the Armed Forces of the USSR Appendix to Order of the USSR Defence Minister No 75 1990 Military Manual para 5 n Soviet Union Soviet Minister of Defence Order No 75 of 16 February 1990 on the Publication of the Geneva Conventions of 12 August 1949 Relative to the Protection of Victims of War and their Additional Protocols Manuel d'application des normes du droit international humanitaire par les Forces armées de l’URSS Annex para 5 o The Appeals Chamber also notes that the trend in prohibiting terror against the civilian population as a method of warfare at the national level continued after 1992 See e g Benin Le Droit de la Guerre III fascicules Forces Armées du Bénin Ministère de la Défense Nationale 1995 Military Manual p 12 Colombia Derecho Internacional Humanitario Manual Básico para las Personerías y las Fuerzas Armadas de Colombia Ministerio de Defensa Nacional 1995 Basic Military Manual p 30 France Fiche didactique relative au droit des conflits armés Directive of the Ministry of Defence 4 January 2000 annexed to the Directive No 147 of the Ministry of Defence of 4 January 2000 Law of Armed Conflict Teaching Note para 403 Germany ZDv 15 1 Humanitäres Völkerrecht in bewaffneten Konflikten Grundsätze DSK VV230120023 Bundesministerium der Verteidigung June 1996 International Humanitarian Law Manual para 403 Kenya Law of Armed Conflict Military Basic Course ORS The School of Military Police 1997 Law of Armed Conflict Manual Précis No 4 p 2 para g 287 See e g Argentina Leyes de Guerra PC-08-01 Público Edición 1989 Estado Mayor Conjunto de las Fuerzas Armadas aprobado por Resolución No 489-89 del Ministerio de Defensa 23 April 1990 Laws of War Manual para 7 08 prohibiting “acts which aim to terrorise the civilian population” Ecuador Aspectos Importantes del Derecho Internacional Marítimo que Deben Tener Presente los Comandantes de los Buques Academia de Guerra Naval 1989 Naval Manual para 6 2 5 “The civilian population as such as well as individual civilians may not be the objects of attack or of threats or acts of intentional terrorisation” Sweden International Humanitarian Law in Armed Conflict with reference to the Swedish Total Defence System Swedish Ministry of Defence Januray 1991 International Humanitarian Law Manual sec 3 2 1 5 p 44 prohibiting “attacks deliberately aimed at causing heavy losses and creating fear among the civilian population” Switzerland Lois et coutumes de la guerre Extrait et commentaire Règlement 51 7 II f Armée Suisse 1987 Basic Military Manual art 27 2 “It is prohibited to commit acts of violence with the primary aim of spreading terror among the civilian population ” United States Air Force Pamphlet 110-31 International Law The Conduct of Armed Conflict and Air Operations US Department of the Air Force 1976 Air Force Pamphlet para 5 3 a 1 a “Acts or threats of violence which have the primary object of spreading terror among the civilian population are prohibited” Yugoslavia Regulations on the Application of International Laws of War in the Armed Forces of the SFRY 1988 para 67 “Attacking civilians for the purpose of terrorising them is especially prohibited ” The Appeals Chamber also notes that the trend in prohibiting terror against the civilian population as a method of warfare at the national level continued after 1992 See e g Netherlands Toepassing Humanitair Oorlogsrecht Voorschrift No 27-412 1 Koninklijke Landmacht Ministerie van Defensie 1993 Military Manual p V-4 para 4 stating that “acts or threats of violence whose primary aim is to terrorise the civilian population are prohibited” during international armed conflicts p XI-6 stating the same for non-international armed conflicts Australia Australian Defence Force Manual on Law of Armed Conflict Australian Defence Force Publication Operation Series ADFP 37 Interim Edition 1994 Defence Force Manual para 554 “ A cts or threats of violence primarily intended to spread terror among the civilian population are prohibited ” Spain Orientaciones El Derecho de los Conflictos Armados Publicación OR7-004 2 Tomos aprobado por el Estado Mayor del Ejército Division de Operaciones 18 March 1996 Law of Armed Conflicts Manual Vol I paras 2 3 b 3 3 3 b 7 Togo Le Droit de la Guerre Etat-Major Général des Forces Armées Togolaises Ministère de la Défense nationale 1996 Military Manual Fascicule III p 12 prohibiting “terrorising the civilian population through acts or threats of violence” United States The Commander’s Handbook on the Law of Naval Operations NWP 1-14M MCWP 52 1 COMDTPUB P5800 7 issued by the Department of the Navy Office of the Chief of Naval Operations and Headquarters US Marine Corps and Department of Transportation US Coast Guard October 1995 Naval Handbook para 11 3 “The civilian population as such as well as individual civilians may not be the object of attack or of threats or acts of intentional terrorization” 288 See for example New Zealand Interim Law of Armed Conflict Manual DM 112 New Zealand Defence Force Headquarters Directorate of Legal Services Wellington November 1992 Interim Law of Armed Conflict Manual para 517 1 for international armed conflicts and para 1819 1 for non-international armed conflicts Canada The Law of Armed Conflict at the Operational and Tactical Level Office of the Judge Advocate General B-GJ-005104 FP-021 1999 The Law of Armed Conflict at the Operational and Tactical Level applicable to both international and non international armed conflicts which prohibits as a “General Rule” “acts or threats of violence the primary 43 Case No IT-98-29-A 30 November 2006 90 In light of the foregoing the Appeals Chamber finds that the prohibition of terror against the civilian population as enshrined in Article 51 2 of Additional Protocol I and Article 13 2 of Additional Protocol II clearly belonged to customary international law from at least the time of its inclusion in those treaties b The criminalisation of the prohibition of terror against the civilian population 91 The crime of acts or threats of violence the primary purpose of which is to spread terror among the civilian population was charged under Article 3 of the Statute The conditions that must be fulfilled for a violation of international humanitarian law to be subject to Article 3 of the Statute are “Tadić conditions” 92 i the violation must constitute an infringement of a rule of international humanitarian law ii the rule must be customary in nature or if it belongs to treaty law the required conditions must be met … iii the violation must be “serious” that is to say it must constitute a breach of a rule protecting important values and the breach must involve grave consequences for the victim Thus for instance the fact of a combatant simply appropriating a loaf of bread in an occupied village would not amount to a “serious violation of international humanitarian law” although it may be regarded as falling foul of the basic principle laid down in Article 46 paragraph 1 of the Hague Regulations and the corresponding rule of customary international law whereby “private property must be respected” by any army occupying an enemy territory iv the violation of the rule must entail under customary or conventional law the individual criminal responsibility of the person breaching the rule 289 Individual criminal responsibility under the fourth Tadić condition can be inferred from inter alia state practice indicating an intention to criminalise the prohibition including statements by government officials and international organisations as well as punishment of violations by national courts and military tribunals 290 purpose of which is to spread terror among the civilian population” para 423 and also specifically states the following under “Terrorizing the civilian population” “Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited The protection of civilians is a fundamental principle of the Law of Armed Conflict A campaign of threats or violence designed to terrorize the civilian population is simply not acceptable under any circumstances even when the civilian population exhibits a hostile attitude toward the presence of the Canadian Forces ” 289 Tadić Jurisdiction Decision para 94 290 Tadić Jurisdiction Decision para 128 44 Case No IT-98-29-A 30 November 2006 93 The first reference to terror against the civilian population as a war crime as correctly noted by the Trial Chamber 291 is found in the 1919 Report of the Commission on Responsibilities created by the Peace Conference of Paris to inquire into breaches of the laws and customs of war committed by Germany and its allies in World War I 292 The Commission found evidence of the existence of “a system of terrorism carefully planned and carried out to the end” stated that the belligerents employed “systematic terrorism” and listed among the list of war crimes “systematic terrorism” 293 Although the few trials organised on that basis in Leipzig did not elaborate on the concept of “systematic terrorism” this is nonetheless an indication that in 1919 there was an intention to criminalise the deliberate infliction of terror upon the civilian population Further in 1945 Australia’s War Crimes Act referred to the work of the 1919 Commission on Responsibilities and included “systematic terrorism” in its list of war crimes 294 94 With respect to national legislation the Appeals Chamber notes that numerous States criminalise violations of international humanitarian law – encompassing the crime of acts or threats of violence the primary purpose of which is to spread terror among the civilian population– within their jurisdiction The Norwegian Military Penal Code of 1902 as amended provides that “ a nyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in the four Geneva Conventions and the two Additional Protocols of 1977 is liable to imprisonment ”295 The 1962 Geneva Conventions Act of Ireland for example provides that any “minor breach” of the Geneva Conventions including violations of Article 33 of Geneva Convention IV is a punishable offence 296 95 The Appeals Chamber also notes that numerous States have incorporated provisions as to the criminalisation of terror against the civilian population as a method of warfare in a language similar to the prohibition set out in the Additional Protocols The Criminal Codes of the Czech Republic and the Slovak Republic for example criminalise “terroris ing defenceless civilians with 291 Trial Judgement para 116 On the Commission on Responsibilities see UN War Crimes Commission History of the United Nations War Crimes Commission and the Development of the Laws of War London HMSO 1948 Chapter III 293 Ibid pp 34-35 reproducing the Commission’s list of war crimes 294 See Australian Law Concerning Trials of War Criminals by Military Courts in Law R Trials War Crim Vol 5 pp 94-95 referred to at paragraph 118 of the Trial Judgement 295 Norway Militaer Straffelov Military Penal Code Act No 13 of 22 May 1902 as amended in 1981 published in Norwegian Law Journal Volume I Law and Central Regulations sec 108 296 Ireland Geneva Conventions Act 1962 sec 4 See also Bangladesh International Crimes Tribunal Act 1973 sec 3 2 e providing inter alia that “violation of any humanitarian rules applicable in armed conflicts laid down in the Geneva Conventions of 1949” are “crimes within the jurisdiction of a Tribunal for which there shall be individual responsibility” Bangladesh ratified Additional Protocols I and II in their entireties on September 8 1980 Switzerland Code pénal militaire Military Penal Code 13 June 1927 published in the Recueil officiel des lois fédérales 1927 art 109 criminalising acts “contrary to the provisions of international agreements on the conduct of hostilities and the protection of persons and property” Switzerland ratified Additional Protocols I and II in their entireties on February 17 1982 292 45 Case No IT-98-29-A 30 November 2006 violence or the threat of violence” 297 Further numerous States have incorporated provisions that criminalise terrorisation of civilians in time of war The Penal Code of Côte d’Ivoire for example provides that measures of terror in time of war or occupation amount to a “crime against the civilian population” 298 The Penal Code of Ethiopia punishes anyone who organises orders or engages in “measures of intimidation or terror” against the civilian population in time of war armed conflict or occupation 299 During the relevant period the Netherlands included “systematic terrorism” in its list of war crimes that carried criminal penalties 300 297 Czech Republic Trestní zákon Criminal Code Act No 140 1961 Coll 29 November 1961 as amended by Act No 305 1999 Coll of 18 November 1999 art 263 a 1 Slovakia Trestní zákon Criminal Code Act No 140 1961 Coll 29 November 1961 as amended art 263 a 1 The Appeals Chamber notes the continuing trend of nations criminalising terror as a method of warfare See e g Argentina Draft Code of Military Justice 1998 art 291 introducing a new article 875 1 in the Code of Military Justice as amended 1951 punishes “acts or threats of violence whose primary aim is to terrorise” Bosnia Herzegovina Criminal Code of the Federation of Bosnia and Herzegovina No 327 adopted on 29 July 1998 published in Službene Novine Federacije Bosne i Hercegovine No 43 98 20 November 1998 art 154 1 criminalises “the application of measures of intimidation and terror” against civilians 1998 Colombia Ley 599 de 2000 julio 24 por la cual se expide el Código Penal Penal Code published in Diario Oficial No 44 097 24 July 2000 art 144 imposes criminal sanction on “anyone who during an armed conflict carries out or orders the carrying out of … acts or threats of violence whose primary purpose is to terrorise the civilian population” Croatia Criminal Code 1997 art 158 1 imposes criminal sanctions on “whoever in violation of the rules of international law at a time of war armed conflict or occupation … orders … the imposition of measures of intimidation and terror” El Salvador Código Penal de la Republica de El Salvador Decreto No 1030 Título XIX Criminal Code as amended 1998 art 362 criminalises violations of “international laws … of war” El Salvador ratified Additional Protocols I and II in their entireties on November 23 1978 Finland Penal Code Act No 39 1889 as amended by Act No 578 1995 of the Finnish legislative gazette Suomen säädöskokoelma issued 21 April 1995 Chapter 11 art 1 imposes criminal sanction on “a person who in an act of war … otherwise violates the provisions of an international agreement on warfare binding on Finland” Finland ratified Additional Protocols I and II in their entireties on August 7 1980 Ireland Geneva Conventions Act 1962 as amended by Act No 35 of 13 July 1998 published in The Acts of the Oireachtas as promulgated sec 4 criminalises any “minor breach” of Additional Protocol I including violations of Article 51 2 as well as any “contravention” of Additional Protocol II including violations of Article 13 2 Ireland ratified Additional Protocols I and II in their entireties on May 19 1999 Lithuania Lietuvos Respublikos baudziamas kodeskas Criminal Code of the Republic of Lituania 26 June 1961 published in Valstybes zinios No 18-147 1961 as amended 9 June 1998 art 336 criminalises “the use of intimidation and terror” in time of war armed conflict or occupation Mauritius Geneva Conventions Amendment Act Act No 2 of 2003 Government Gazette 17 May 2003 General Notice 722 section 4 e amending section 3 of the Geneva Conventions Act of 1970 criminalises breaches of the Additional Protocols under Mauritian law Mauritius ratified Additional Protocols I and II in their entireties on March 22 1983 Mexico Código Penal Federal Federal Criminal Code as amended 2006 First Book Preliminary Title art 6 criminalises acts which are an offence under an international treaty to which Mexico is a party Mexico ratified the entirety of Additional Protocol I on March 10 1983 Russia Criminal Code of the Russian Federation No 63-FZ 13 June 1996 promulgated in Collection of legislation of the Russian Federation No 25 17 June 1996 art 356 1 punishes the “cruel treatment of … the civilian population” and the use in an armed conflict of “means and methods prohibited by an international treaty of the Russian Federation” Russia ratified Additional Protocols I and II in their entireties on September 29 1989 Spain Ley Orgánica 10 1995 de 23 de Noviembre del Código Penal Penal Code published in Boletín Oficial del Estato No 281 24 November 1995 art 611 1 punishes anyone who during an armed conflict makes the civilian population the object of “acts or threats of violence whose primary purpose is to terrorise them” Yemen Military Criminal Code Law No 21 1998 relative to military offences and penalities 25 July 1998 published in Official Gazette of the Republic of Yemen No 18 20 September 1999 criminalises all acts which constitute an offence against persons or property protected under international agreements to which Yemen is a party Yemen ratified Additional Protocols I and II in their entireties on April 17 1990 298 Côte d’Ivoire Loi No 81-640 du 31 juillet 1981 instituant le Code Pénal Penal Code published in the Journal Officiel de la République de Côte d’Ivoire No 1 numéro special as amended art 138 5 299 Ethiopia Penal Code of the Empire of Ethiopia Proclamation No 158 published in Negarit Gazeta 16th Year No 1 1957 art 282 g 300 Netherlands Law Concerning Trials of War Criminals art 1 in Law R Trials War Crim Vol 11 pp 86 93 See also Slovenia Kazenski zakonik Penal Code 29 September 1994 art 374 1 criminalising the imposition of 46 Case No IT-98-29-A 30 November 2006 96 The Appeals Chamber also notes the references by the Trial Chamber to the laws in force in the former Yugoslavia at the time of the commission of the offences charged 301 particularly Article 125 “War Crime Against the Civilian Population” in Chapter XI “Criminal Offences Against Humanity and International Law” of the 1960 Criminal Code of the Republic of Yugoslavia302 and the superseding Article 142 “War Crime Against the Civilian Population” in Chapter XVI “Criminal Offences Against Humanity and International Law” of the 1976 Criminal Code 303 both of which criminalise terror against the civilian population and provisions of Yugoslavia’s 1988 “₣Armed Forcesğ Regulations on the Application of International Laws of War” 304 which incorporated the provisions of Additional Protocol I following Yugoslavia’s ratification of that treaty on 11 March 1977 Those provisions not only amount to further evidence of the customary nature of terror against the civilian population as a crime but are also relevant to the assessment of the foreseeability and accessibility of that law to Galić 305 97 In addition to national legislation the Appeals Chamber notes the conviction in 1997 by the Split County Court in Croatia for acts that occurred between March 1991 and January 1993 under inter alia Article 51 of Additional Protocol I and Article 13 of Additional Protocol II including “a plan of terrorising and mistreating the civilians” “open ing fire from infantry arms … with only one goal to terrorise and expel the remaining civilians” “open ing fire from howitzers machine guns automatic rifles anti-aircraft missiles only to create the atmosphere of fear among the measures of “intimidation and terrorism” against the civilian population Several of the above references to military manuals and national legislation were extracted from Henckaerts J-M and Doswald-Beck L Customary International Humanitarian Law Volume II Cambridge 2005 301 Trial Judgement paras 121-124 302 Yugoslavia Criminal Code of 1951 as amended June 30 1959 entered into force January 1 1960 in Collection of Yugoslav Laws Volume XI Institute of Comparative Law Belgrade 1964 Art 125 states in relevant part “Whoever in violation of the rules of international law at the time of war armed conflict or occupation orders or executes wilful killings tortures or inhuman treatment of the civilian population including … use of measures of intimidation and terror … shall be punished by imprisonment for not less than five years or by the death penalty” 303 Krivični zakon SFRJ Criminal Code of the SFRY adopted on September 28 1976 published in the Official Gazette SFRJ No 44 of October 8 1976 Article 142 reads in relevant part “Whosoever in violation of the rules of the international law effective at the time of war armed conflict or occupation orders that the civilian population be subject to … the application of measures of intimidation and terror … shall be punished by imprisonment for not less than five years or by the death penalty” 304 Regulations on the Application of International Laws of War in the Armed Forces of the SFRY ex P5 1 This manual provides inter alia that “Serious” violations of the laws of war are considered criminal offences p 14 considers as war crimes “attack on civilians ₣ ğ inhuman treatment ₣of civiliansğ inflicting great suffering or injury to bodily integrity or health ₣ ğ application of measures of intimidation and terror” p 18 emphasis added mentions explicitly under the part dealing with means and methods of combat that “Attacking civilians for the purpose of terrorising them is especially prohibited ” p 29 and envisages that that the perpetrators of war crimes “may also answer before an international court if such a court has been established” p 15 305 Ojdani Appeal Decision on Joint Criminal Enterprise para 40 See also Had ihasanovi et al Appeal Decision on Jurisdiction in Relation to Command Responsibility para 34 47 Case No IT-98-29-A 30 November 2006 remaining farmers” and “carrying out the orders of their commanders with the goal to terrorise and threaten with the demolishing of the Peruča dam” 306 98 In light of the foregoing the Appeals Chamber finds by majority Judge Schomburg dissenting that customary international law imposed individual criminal liability for violations of the prohibition of terror against the civilian population as enshrined in Article 51 2 of Additional Protocol I and Article 13 2 of Additional Protocol II from at least the period relevant to the Indictment 3 The elements of the crime of acts or threats of violence the primary purpose of which is to spread terror among the civilian population 99 Galić argues under his fifth ground of appeal that although he stood trial under Count 1 for terror against the civilian population including as one of its elements the infliction of terror against the civilian population he was convicted and sentenced for a different offence which did not require the infliction of terror against the civilian population but merely the intent to spread terror among the civilian population He argues that the Trial Chamber thereby impermissibly departed from the Indictment 307 He also contends in his sixteenth ground of appeal that the existence of terrorisation of the civilian population not being proved beyond reasonable doubt at the end of the trial the Trial Chamber should have acquitted him of Count 1 of the Indictment by virtue of the principle of in dubio pro reo 308 The Appeals Chamber has already found that in principle the Trial Chamber was acting within the confines of its jurisdiction when it found that actual infliction of terror on the civilian population was not an element of the crime of terror against the civilian population and rejected both arguments 309 Under the present ground of appeal Galić again argues that it was not proven that “terror as such was inflicted upon the civilian population” 310 an argument that the Appeals Chamber understands to address the substantive content of the crime rather than the Trial Chamber’s ability to exercise jurisdiction over the crime He argues in his Notice of Appeal that the Trial Chamber erred both specifically when it found that infliction of 306 Prosecutor v R Radulović et al Split Country Court Republic of Croatia Case No K-15 95 Verdict of 26 May 1997 The Appeals Chamber also notes the reference made by the Trial Chamber to the first conviction for terror against the civilian population delivered in July 1947 by a court martial sitting in the Netherlands East Indies in the Motomura et al case the court martial convicted 13 of the 15 accused before it of “systematic terrorism practised against civilians” for acts including unlawful mass arrests See Trial Judgement paras 114-115 referring to Trial of Shigeki Motomura and 15 Others in Law R Trials War Crim Vol 13 p 138 307 Defence Appeal Brief para 35 See also Defence Notice of Appeal para 13 “No rules whatsoever would allow the Tribunal to find someone guilty of a crime which in the end is not the same as the one of which the Accused was informed and for which he was prosecuted ” 308 Defence Appeal Brief para 250 309 See supra para 72 310 Defence Appeal Brief para 57 48 Case No IT-98-29-A 30 November 2006 terror against the civilian population is not an element of the crime311 and generally in identifying the elements of the crime 312 Although Galić does not specifically identify how the Trial Chamber erred in its determination of the elements of the crime of terror against the civilian population the Appeals Chamber will now assess whether the Trial Chamber correctly identified the elements of crime of acts or threats of violence the primary purpose of which is to spread terror among the civilian population as charged as this could have an impact on Galić’s criminal responsibility under Count 1 100 The Trial Chamber held at paragraph 133 of the Trial Judgement that the crime of terror against the civilian population as charged in the Indictment consists of the elements common to offences falling under Article 3 of the Statute as well as the following elements 1 Acts of violence directed against the civilian population or individual civilians not taking direct part in hostilities causing death or serious injury to body or health within the civilian population 2 The offender wilfully made the civilian population or individual civilians not taking direct part in hostilities the object of those acts of violence 3 The above offence was committed with the primary purpose of spreading terror among the civilian population 313 On the basis that the question was not before it the Trial Chamber did not consider whether the International Tribunal would have jurisdiction over forms of violence other than those charged under Count 1 That is it did not consider whether the crime of terror against the civilian population under Count 1 of the Indictment could consist only of threats of violence or acts of violence not causing death or injury 314 101 Having found that the prohibition on terror against the civilian population in the Additional Protocols was declaratory of customary international law the Appeals Chamber will base its analysis of the elements of the crime under consideration under Count 1 on the definition found therein “Acts or threats of violence the primary purpose of which is to spread terror among the civilian population ” a Actus reus 102 The Appeals Chamber has already found that the crime of acts or threats of violence the primary purpose of which is to spread terror among the civilian population falls within the general 311 Defence Notice of Appeal para 40 Defence Notice of Appeal paras 40 41 43 44 313 Trial Judgement para 133 312 49 Case No IT-98-29-A 30 November 2006 prohibition of attacks on civilians 315 The definition of terror of the civilian population uses the terms “acts or threats of violence” and not “attacks or threats of attacks ” However the Appeals Chamber notes that Article 49 1 of Additional Protocol I defines “attacks” as “acts of violence” 316 Accordingly the crime of acts or threats of violence the primary purpose of which is to spread terror among the civilian population can comprise attacks or threats of attacks against the civilian population The acts or threats of violence constitutive of the crime of terror shall not however be limited to direct attacks against civilians or threats thereof but may include indiscriminate or disportionate attacks or threats thereof The nature of the acts or threats of violence directed against the civilian population can vary 317 the primary concern as explained below is that those acts or threats of violence be committed with the specific intent to spread terror among the civilian population Further the crime of acts or threats of violence the primary purpose of which is to spread terror among the civilian population is not a case in which an explosive device was planted outside of an ongoing military attack but rather a case of “extensive trauma and psychological damage”318 being caused by “attacks which were designed to keep the inhabitants in a constant state of terror” 319 Such extensive trauma and psychological damage form part of the acts or threats of violence b Mens rea and result requirement 103 As the Trial Chamber correctly noted a plain reading of Article 51 2 of Additional Protocol I does not support a conclusion that the acts or threats of violence must have actually spread terror among the civilian population 320 Where a treaty provision is capable of sustaining more than one meaning Article 31 1 of the 1969 Vienna Convention on the Law of Treaties directs that it shall be interpreted in accordance with its ordinary meaning in light of its object and purpose and in the context of the treaty 321 The object and purpose of Article 51 2 of Additional Protocol I is to confirm both the customary rule that civilians must enjoy general protection against the danger arising from hostilities and the customary prohibition against attacking civilians The prohibition of acts or threats of violence would in that sense stem from the unconditional obligation 314 Trial Judgement para 130 See supra para 87 316 The jurisprudence of the Tribunal also defines “attacks” as a course of conduct involving “acts of violence” See Kunarac et al Trial Judgement para 415 confirmed at paragraph 94 of the Kunarac et al Appeal Judgement 317 The Appeals Chamber also notes that many States referred to “propaganda” as a possible method of terror Travaux Préparatoires Vol XV pp 52 61 67 318 Indictment para 4 c 319 Indictment para 4 b 320 Trial Judgement para 76 Terror could be defined as the Trial Chamber did as “extreme fear” Trial Judgement para 137 321 See Vienna Convention art 31 1 315 50 Case No IT-98-29-A 30 November 2006 not to target civilians for any reason even military necessity 322 Further pursuant to Article 32 of the 1969 Vienna Convention recourse may be had to “supplementary means of interpretation including the preparatory work of the treaty and the circumstances of its conclusion in order to confirm the meaning resulting from the application of article 31” 323 As noted by the Trial Chamber 324 the travaux préparatoires to Additional Protocol I clearly establish that there had been attempts among the delegations to replace the original wording from intent to spread terror among the civilian population to actual infliction of terror on the civilian population but that this proposed change was not accepted 325 As noted by the representative of France the waging of war would almost automatically lead to the spreading of terror among the civilian population and the intent to spread terror is what had to be prohibited 326 In the report of its second session the committee stated “The prohibition of ‘acts or threats of violence which have the primary object of spreading terror’ is directed to intentional conduct specifically directed toward the spreading of terror and excludes terror which was not intended by a belligerent and terror that is merely an incidental effect of acts of warfare which have another primary object and are in all other respects lawful ”327 104 In light of the foregoing the Appeals Chamber finds that actual terrorisation of the civilian populations is not an element of the crime The mens rea of the crime of acts or threats of violence the primary purpose of which is to spread terror among the civilian population is composed of the specific intent to spread terror among the civilian population Further the Appeals Chamber finds that a plain reading of Article 51 2 suggests that the purpose of the unlawful acts or threats to commit such unlawful acts need not be the only purpose of the acts or threats of violence The fact that other purposes may have coexisted simultaneously with the purpose of spreading terror among the civilian population would not disprove this charge provided that the intent to spread terror among the civilian population was principal among the aims Such intent can be inferred from the circumstances of the acts or threats that is from their nature manner timing and duration 322 Blaškić Appeal Judgement para 109 “the Appeals Chamber deems it necessary to rectify the Trial Chamber’s statement contained in paragraph 180 of the Trial Judgement according to which ‘ t argeting civilians or civilian property is an offence when not justified by military necessity ’ The Appeals Chamber underscores that there is an absolute prohibition on the targeting of civilians in customary international law ” 323 Vienna Convention art 32 324 Trial Judgement para 134 325 The representatives of Ghana Nigeria Uganda and Tanzania proposed that the words “methods intended to spread” terror be replaced by “acts capable of spreading” terror Travaux préparatoires Vol III p 203 The representatives of Algeria Egypt South Yemen Iraq Kuwait Libya Morocco Sudan Syria the United Arab Emirates Mongolia and the USSR proposed that “intended to spread terror” be replaced by “that spread terror” Ibid p 205 Vol XIV pp 53 73 The representative of Philippines proposed that paragraph 1 be redrafted as such “It is prohibited to attack or commit acts capable of spreading terror among the civilian population and individual civilians ” Ibid Vol III p 206 The representative of Iraq said intent was “subjective and vague” and proposed that “intended to spread terror” be replaced by “which spread terror” The representative of Indonesia proposed that the prohibition read “The spreading of terror among the civilian population is prohibited ” Ibid Vol XIV p 55 326 Travaux préparatoires Vol XIV p 65 “in traditional war attacks could not fail to spread terror among the civilian population what should be prohibited … was the intention to do so ” 327 Travaux préparatoires Vol XV p 274 cited at paragraph 101 of the Trial Judgement 51 Case No IT-98-29-A 30 November 2006 4 Whether Galić intended to spread terror 105 Galić agrees in principle with the Trial Chamber that the crime of acts or threats of violence the primary purpose of which is to spread terror among the civilian population “excludes terror which was not intended by a belligerent and terror that is merely an incidental effect of acts of warfare which have another primary object and are in all other respects lawful” 328 but contends that the Trial Chamber did not in fact consider whether “the alleged terror could have been excluded on that basis” 329 He argues that “it was certainly not proven that he had the intent to commit ‘acts of violence the primary purpose of which is to spread terror among the civilian population’” 330 Further he contends that the Trial Chamber considered that “acts of violence” constituted the manner used to spread terror among the civilian population while the Prosecution alleged that sniping and shelling served to inflict terror upon the civilian population thereby making no reference to such “acts of violence” 331 The Prosecution explains that the Trial Chamber’s analysis of Galić’s intent to spread terror among the civilian population proceeded on two fronts first establishing that the campaign of sniping and shelling in Sarajevo was conducted with the aim of inflicting terror on the civilian population and then examining the role of Galić in the campaign in order to determine whether he intended that terror be spread among the civilian population 332 The Prosecution goes into some detail of the Trial Chamber’s analysis and notes that Galić “ignores the voluminous evidence that the Majority relied upon to find that the shelling and sniping campaign was carried out for the primary purpose of causing terror”333 and similarly “fails entirely to address the pages and pages of reasons the Majority gave for concluding that Gali was acting with the specific intent to cause terror” 334 106 With regard to Galić’s claim that the Trial Chamber convicted him under Count 1 for “acts of violence” while the facts alleged in the Indictment were concerned with a “protracted campaign of shelling and sniping upon civilians areas in Sarajevo” 335 the Appeals Chamber simply notes that Galić disregards the unambiguous finding of the Trial Chamber with regard to the actus reus of the crime of terror against the civilian population as charged that is that “attacks by sniping and 328 Defence Appeal Brief para 70 citing paragraph 101 of the Trial Judgement Defence Appeal Brief para 70 See also ibid para 71 “ The Trial Chamber necessarily had to examine and determine whether this terror was not a terror which had to be excluded in casu” ibid para 72 “Not only did the Defence formally den y the mere existence of any crime of terror but it clearly stated that the mere fact of a war waged in urban conditions where belligerent parties or enemies were separated by a few blocks … would naturally and automatically provoke terror If a crime of terror really existed this ‘licit’ terror had to be somehow quantified and determined by the Tribunal and this before any other factual or legal conclusion ” 330 Defence Appeal Brief paras 57 84-85 331 Defence Appeal Brief page 8 fn 17 See also ibid para 83 332 Prosecution Response Brief para 7 67 See Trial Judgement paras 600-601 333 Prosecution Response Brief para 7 68 334 Prosecution Response Brief para 7 72 329 52 Case No IT-98-29-A 30 November 2006 shelling on the civilian population and individual civilians not taking part in hostilities constitute acts of violence” 336 The Appeals Chamber finds that the sniping and shelling in question undoubtedly fall within the scope of “acts of violence” contemplated under the definition of the crime of acts or threats of violence the primary purpose of which is to spread terror among the civilian population 107 With regard to the conclusion of the Trial Chamber that Galić had the intent to spread terror among the civilian population the Appeals Chamber notes that Galić only challenges in his Appeal Brief that the Prosecution “failed to prove any such intent in any of the scheduled incidents and even less in the unscheduled incidents” 337 The Appeals Chamber notes that the Trial Chamber relied on a plethora of evidence to demonstrate that terrorisation of the civilian population was the primary purpose of the campaign of sniping and shelling and that Galić ordered the commission of the underlying acts with the same specific intent It reached its conclusion that Galić had the intent to spread terror in the following way it first assessed the evidence before it to determine whether the SRK forces deliberately targeted civilians 338 reached the conclusion that they did 339 and then inferred from “the nature of the civilian activities targeted the manner in which the attacks on civilians were carried out and the timing and duration of the attacks on civilians”340 that “the aim of the campaign of sniping and shelling in Sarajevo was to terrorise the civilian population of the city” 341 The Trial Chamber found inter alia in view of the evidence before it that “the attacks on civilians were numerous but were not consistently so intense as to suggest an attempt by the SRK to wipe out or even deplete the civilian population through attrition” that those attacks “had no discernible significance in military terms … occurred with greater frequency in some periods but very clearly carried the message … that no Sarajevo civilian was safe anywhere at any time of day or night” and that “the only reasonable conclusion in light of the evidence in the Trial Record is that the primary purpose of the campaign was to instill in the civilian population a state of extreme fear” 342 The Trial Chamber then proceeded to assess the criminal responsibility of Galić 343 It found that he failed to prevent the commission of the crimes and to punish the perpetrators even though he had knowledge of the crimes and had control over the SRK forces It also found that he furthered the campaign of terror through orders relayed down the SRK chain of 335 Indictment Count 1 Trial Judgement para 596 337 Defence Appeal Brief para 84 338 Trial Judgement paras 209-591 339 Trial Judgement para 591 “The Majority is convinced by the evidence in the Trial Record that civilians in ABiHheld areas of Sarajevo were directly or indiscriminately attacked from SRK-controlled territory during the Indictment Period and that as a result and as a minimum hundreds of civilians were killed and thousands others were injured ” 340 Trial Judgement para 592 341 Trial Judgement para 592 342 Trial Judgement para 593 336 53 Case No IT-98-29-A 30 November 2006 command As a result it concluded that he “intended to conduct that campaign with the primary purpose of spreading terror within the civilian population of Sarajevo” 344 108 The Appeals Chamber recalls that an appellant “has the obligation to set out his grounds of appeal clearly and to provide the Appeals Chamber with references to the alleged errors of the Trial Judgement and to the part of the record he is using to support his case” 345 A mere assertion that the Trial Chamber erred on a particular point without any argument as to why this is so or a mere reference to the Trial Chamber’s finding being contrary to the evidence without the citation of any particular evidence does not suffice to meet the obligations of the appellant Gali ’s only specific arguments are found in his Reply Brief mainly with regard to the interpretation of witnesses’ testimonies 346 He alleges for example that the Trial Chamber wrongly interpreted at paragraph 743 of the Trial Judgement the statements of witnesses Razek and DP35 347 In particular he claims that there were no orders to target the civilians crossing the tarmac of Sarajevo airport At paragraph 743 however the Trial Chamber does not find that orders were given to target the civilians It relied on the evidence of witnesses Razek and DP35 to support its earlier conclusion that there was “an irresistible inference to be drawn from the evidence on the Trial Record that what the Trial Chamber has found to be widespread and notorious attacks against the civilian population of Sarajevo could not have occurred without it being the will of the commander of those forces which perpetrated it and that the lack of measures to prevent illegal sniping and shelling activities was deliberate” 348 The Trial Chamber’s reference to the evidence of Witness DP35 was also used as evidence that “counteracts the Defence’s various arguments that orders were not given to SRK troops to fire either in a deliberately indiscriminate manner or specifically against civilians” 349 The Appeals Chamber therefore finds that Galić has not demonstrated that no reasonable trier of fact could have reached the Trial Chamber’s conclusion that he had the intent to spread terror among the civilian population 109 In light of the foregoing this part of Gali ’s ground of appeal is dismissed 343 Trial Judgement paras 603-753 Trial Judgement para 749 345 Practice Direction on Appeals Requirements para 4 b see also Kvo ka Appeal Judgement para 15 Vasiljević Appeal Judgement para 12 346 Some other arguments of the Defence pertain to the criminal responsibility of Galić such as whether or not he ordered crimes to be committed and as such touch upon Galić’s eighteenth ground of appeal which will be dealt with below See Defence Reply Brief para 59 referring to paragraph 544 of the Defence Appeal Brief 347 Defence Reply Brief paras 58 60 348 Trial Judgement para 742 349 Trial Judgement para 743 See also ibid para 416 where the Trial Chamber addressed the issue of the crossing of Sarajevo’s airport and found that the firing was indiscriminate in that the “SRK was well aware that civilians crossed the runway” and in that Galić stated that “he intended to stop such movement ‘by all means’” thereby agreeing that attacks would be carried out indiscriminately 344 54 Case No IT-98-29-A 30 November 2006 VIII GROUND 6 ALLEGED ERROR OF LAW IN CONNECTION WITH THE CRIME OF ATTACK ON CIVILIANS 110 Galić contends that the Trial Chamber made various errors of law with respect to the count of “attack on civilians” Significantly the Trial Chamber found that only the first sentence of the second paragraph of Article 51 of Additional Protocol I to the Geneva Conventions stating “ t he civilian population as such as well as individual civilians shall not be the object of attack” 350 and not Article 51 as a whole formed the basis for this crime as charged by the Prosecution in Counts 4 and 7 351 A Chapeau requirements of Article 3 of the Statute 1 Arguments of the Parties 111 Galić first alleges that the Trial Chamber erred in its understanding of Article 3 of the Statute 352 He asserts that the jurisprudence of the International Tribunal is founded upon an erroneous interpretation of Article 3 which was first applied in the Tadić Jurisdiction Decision 353 In this regard he admits that the Tadić Jurisdiction Decision and its application of the Tadić conditions which set out preconditions for the application of Article 3 of the Statute 354 represent the “generally accepted stand in the practice of the Tribunal” 355 However he claims that a textual reading of Article 3 of the Statute requires that “the provisions of this Article may be applied only in cases of unlawful conduct violating international standards prescribed for protection of material goods and assets but not of physical persons whose integrity is protected under Articles 2 4 and 5 of the Statute” 356 112 Furthermore Galić argues that Article 3 of the Statute cannot have been intended to refer to common Article 3 to the Geneva Conventions which stipulates the minimum guaranteed protections in cases of non-international armed conflicts 357 because Article 2 of the Statute already 350 Additional Protocol I art 51 2 first sentence Trial Judgement para 41 At first glance it is unusual that Galić is challenging the Trial Chamber’s findings with regard to Counts 4 and 7 because the Trial Chamber dismissed those counts See Trial Judgement para 769 However it did so only in order to avoid a conviction cumulative with the crime of acts or threats of violence the primary purpose of which is to spread terror among the civilian population Count 1 which includes the crime of attacks upon civilians as a lesser included offence Therefore this section in actuality applies mutatis mutandis to the finding of guilt for the crime of acts or threats of violence the primary purpose of which is to spread terror among the civilian population 352 Specifically Galić seeks to impugn paragraphs 9-12 and 16-34 of the Trial Judgement See Defence Appeal Brief para 37 fn 23 para 43 353 Tadić Jurisdiction Decision paras 87-91 94 See Defence Appeal Brief para 37 354 See supra para 91 355 Defence Appeal Brief para 37 fn 24 356 Defence Appeal Brief para 38 emphasis added 357 Common Article 3 to the Geneva Conventions reads in relevant part 351 55 Case No IT-98-29-A 30 November 2006 performs this function 358 He argues that the text of Article 2 of the Statute limits crimes for prosecution only to the grave breaches contained therein and consequently the prosecution of other grave breaches under Article 3 of the Statute would not be in compliance with Article 1 of the Statute 359 Galić argues that if the alternative were true then Article 2 of the Statute would have made provision for further powers of prosecution for grave breaches as was done in Article 3 of the Statute 360 113 As a result Galić asserts that the line of decisions that the Trial Chamber used in support of its decision was “erroneously established” 361 and its determination that the Tadić conditions were fulfilled in the present case was made in error 362 114 Finally Galić raises a question as to whether the International Tribunal has the power to apply Articles 2 and 3 of the Statute to internal armed conflicts He notes that Article 5 of the Statute expressly confers authority to prosecute crimes against humanity committed in armed conflict “whether international or internal in character” 363 but that such an express conferral of authority is absent from Articles 2 and 3 of the Statute Galić claims that this raises doubts as to whether those Articles grant the power to prosecute crimes committed in the context of an internal armed conflict 364 The conclusion drawn from this submission is that the Trial Chamber allegedly erred in applying Article 3 of the Statute to find Galić guilty of the crime of attack on civilians In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties each Party to the conflict shall be bound to apply as a minimum the following provisions 1 Persons taking no active part in the hostilities including members of armed forces who have laid down their arms and those placed hors de combat by sickness wounds detention or any other cause shall in all circumstances be treated humanely without any adverse distinction founded on race colour religion or faith sex birth or wealth or any other similar criteria To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons a violence to life and person in particular murder of all kinds mutilation cruel treatment and torture b taking of hostages c outrages upon personal dignity in particular humiliating and degrading treatment d the passing of sentences and the carrying out of executions without previous Judgement pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples 2 The wounded and sick shall be collected and cared for 358 Defence Appeal Brief para 39 Galić posits that the title of Article 2 of the Statute explicitly designates it as the provision by which “Grave breaches of the Geneva Conventions of 1949” should be prosecuted See Defence Appeal Brief para 40 fn 28 359 Defence Appeal Brief para 40 360 Defence Appeal Brief para 40 fn 30 361 Defence Appeal Brief para 41 362 Defence Appeal Brief para 43 363 Defence Appeal Brief para 43 citing Article 5 of the Statute 364 Defence Appeal Brief para 42 56 Case No IT-98-29-A 30 November 2006 without properly determining whether the attack occurred during an internal or international armed conflict 365 115 The Prosecution responds that the relevant sections of the Trial Judgement contain no legal errors and this ground of appeal should accordingly be dismissed 366 It maintains that the law is well settled in this area and that Galić raises no novel argument or interests that would support a departure from this well-reasoned line of jurisprudence 367 2 Discussion 116 The Appeals Chamber finds that Galić has not established that the Trial Chamber committed an “error on a question of law invalidating the decision” 368 The Trial Chamber in this case was bound to apply the ratio decidendi of the relevant Appeals Chamber decisions 369 starting with the Tadić Jurisdiction Decision and the analysis of the Tadić conditions contained therein which it did Indeed Galić readily admits that the Trial Chamber followed the Appeals Chamber’s previous interpretation of Article 3 of the Statute 370 117 Unlike the Trial Chamber the Appeals Chamber is not bound to follow its earlier decisions however the Appeals Chamber has repeatedly and consistently held that it will do so in the interests of certainty and predictability except when “cogent reasons in the interests of justice” require a departure therefrom 371 No such cogent reasons have been offered by Galić to justify a departure from the Appeals Chamber’s previous – and consistent – interpretations of Article 3 of the Statute nor do such reasons exist in this case 118 The jurisprudence of the Appeals Chamber in this area is clear and well-settled Article 3 of the Statute is not limited to the protection of property 372 Contrary to Galić’s submission the text of Article 3 makes it clear that the list of violations is merely illustrative not exhaustive 373 Galić 365 The Trial Chamber in fact determined it to be unnecessary to decide on the characterisation of the conflict See Trial Judgement para 22 366 Prosecution Response Brief para 6 2 367 See Prosecution Response Brief paras 6 5-6 8 368 Article 25 of the Statute See also Kupreškić et al Appeal Judgement para 21 369 Aleksovski Appeal Judgement para 113 370 Defence Appeal Brief fn 24 371 Aleksovski Appeal Judgement para 107 See also Kordi and erkez Appeal Judgement para 1040 372 See Kunarac et al Appeal Judgement paras 67-69 373 See Tadić Jurisdiction Decision para 91 stating that Article 3 confers jurisdiction “over any serious offence against international humanitarian law” not covered elsewhere in the Statute 57 Case No IT-98-29-A 30 November 2006 proffers no novel submissions as to why the interests of justice would require the Appeals Chamber to depart from its interpretation of Article 3 of the Statute 374 His argument therefore fails 119 With respect to Galić’s second argument it has repeatedly been held that crimes contrary to Article 3 common to the four Geneva Conventions are punishable under Article 3 of the Statute 375 In any event Galić’s submission that common Article 3 to the Geneva Conventions is inapplicable by virtue of Article 2 of the Statute is misconceived In paragraphs 16-34 of the Trial Judgement the section that Galić attempts to impugn the Trial Chamber explicitly premises its conclusions on Article 51 2 of Additional Protocol I 376 the terms of which it says apply both as per the 22 May 1992 Agreement between the Parties to the conflict and under customary international law 377 It does not premise its findings on common Article 3 378 Galić’s argument is accordingly dismissed 120 As to Galić’s third argument it is settled that customary international law makes the offenses set out under Article 3 of the Statute 379 including the crime of attacks on civilians applicable to all armed conflicts whether internal or international 380 Galić offers negligible support to impugn this line of reasoning His argument that the lack of express reference to the application of Article 3 of the Statute to internal armed conflicts – in juxtaposition to the language of Article 5 – makes Article 3 inapplicable to such conflicts is without merit The Trial Chamber was therefore correct in proceeding as it did and Galić’s argument is dismissed B Objective and subjective elements of the crime of attack on civilians 121 Galić claims that the Trial Chamber erred in its analysis of the elements of the crime of attack on civilians as a violation of the laws or customs of war His arguments with respect to the Trial Chamber’s conclusions on the objective and subjective elements of the crime of attack on civilians can be separated into three categories 1 arguments dealing in general terms with the qualification of the crime of attack on civilians as a violation of the laws and customs of war as it was pleaded in the Indictment 2 arguments relating to the Trial Chamber’s findings pertaining to the actus reus of that crime and 3 arguments relating to the Trial Chamber’s findings on its mens rea requirements 374 The lineage of such jurisprudence includes Kordi and erkez Appeal Judgement paras 40-45 Kunarac et al Appeal Judgement paras 67-69 Čelebići Appeal Judgement paras 116-139 Tadić Jurisdiction Decision paras 89-94 375 Kunarac et al Appeal Judgement para 68 Čelebići Appeal Judgement para 134 Tadić Jurisdiction Decision para 89 376 Additional Protocol I 377 See generally Trial Judgement paras 21-25 378 Trial Judgement paras 19-33 379 Tadić Jurisdiction Decision para 137 380 See Strugar et al Jurisdiction Decision paras 9-10 see also Prosecutor v Enver Had ihasanovi Mehmed Alagi and Amir Kubura Case No IT-01-47-AR73 3 Decision on Joint Defence Interlocutory Appeal of Trial Chamber Decision on Rule 98bis Motions for Acquittal 11 March 2005 para 28 58 Case No IT-98-29-A 30 November 2006 1 The qualification of the crime of attack on civilians as a “violation of the laws and customs of war” 122 Galić makes three distinct submissions related to the qualification of the crime of attack on civilians 123 First he claims that the Trial Chamber erred in asserting that “the crime of attack on civilians is constituted of the elements common to offences falling under Article 3 of the Statute” 381 The Appeals Chamber notes the vagueness of this allegation and the lack of any argumentation in support thereof Moreover Galić appears to take the Trial Chamber’s finding out of context The relevant paragraphs of the Trial Judgement he relies upon do not simply assert that the crime is “constituted of the elements common to offences falling under Article 3” but also that there exist further specific constitutive elements of the crime the actus reus and mens rea of the crime respectively 382 The crime of attack on civilians falls under Article 3 of the Statute as a “violation of the laws and customs of war” and therefore must share the elements common to offences falling under that Article The Trial Chamber adverted to these common or chapeau elements of Article 3 crimes in paragraphs 9-11 of the Trial Judgement and found after extensive discussion that the elements establishing the existence of a crime under Article 3 of the Statute were present in the instant case 383 There was no need to re-list these elements in the impugned paragraph of the Trial Judgement para 56 but only to refer back to the prior finding as the Trial Chamber did To these chapeau elements the Trial Chamber correctly added the actus reus and mens rea elements of the particular crime under examination No error can be found in such an approach or indeed in the Trial Chamber’s conclusions that the elements were present Galić’s argument is accordingly dismissed 124 Second Galić again contends that the crime of attack on civilians is proscribed by Articles 2 and 5 of the Statute and therefore cannot be punished pursuant to Article 3 of the Statute 384 This mirrors the argument already addressed above and does not warrant a recapitulation of the reasons already given 381 Trial Judgement para 56 See Defence Appeal Brief para 49 Trial Judgement para 56 These “specific elements” of the crime of attack on civilians are mentioned “ 1 Acts of violence directed against the civilian population or individual civilians not taking direct part in hostilities causing death or serious injury to body or health within the civilian population 2 The offender wilfully made the civilian population or individual civilians not taking direct part in hostilities the object of those acts of violence ” 383 Trial Judgement paras 16-32 applying the four Tadić conditions to the facts of the case 384 Defence Appeal Brief para 51 382 59 Case No IT-98-29-A 30 November 2006 125 Finally Galić submits that attacks on civilians cannot be qualified as criminal acts under Article 3 of the Statute on the basis of either customary international law or treaty law 385 He claims that the crime of attack on civilians is an “expression of general nature designating unlawful action aimed at civilians as a protected category in all conflicts” since it lacks specific constitutive elements and thus cannot amount to a distinct criminal offence 386 To the extent that this vague assertion alleges that the offence of attacks against civilians is cumulative with other offences the interpretation by the Prosecution of this argument 387 this issue will be dealt with under the ninth ground of appeal To the extent that Galić’s argument is founded on an assertion of vagueness that is that the construction of Article 3 of the Statute is too vague to enable a legitimate interpretation this is most certainly not the case As stated there is a well-worn line of jurisprudence interpreting Article 3 of the Statute and even a cursory analysis of customary international law and important international humanitarian law instruments demonstrates that the crime of attack on civilians is quite specific Galić’s argument is accordingly dismissed 2 Actus reus of the crime of attack on civilians 126 Galić posits four distinct arguments with respect to the actus reus of the crime of attack on civilians a The alleged re-qualification of the Indictment 127 Galić argues that the Trial Chamber came to an erroneous conclusion in paragraph 43 of the Trial Judgement by “re-qualifying the Indictment” with respect to the criminal act of attack on civilians 388 The Trial Chamber found The present Indictment refers only to killing and wounding of civilians therefore the Trial Chamber does not deem it necessary to express its opinion on whether attacks that do not result in civilian deaths or serious casualties entail individual criminal responsibility under this charge 389 The Prosecution responds by pointing to the connection between the Indictment and the Trial Chamber’s findings both of which referred to the killing and wounding of civilians 390 It points out that the Trial Chamber referred in paragraph 42 to the requirement in the Blaškić and Kordić Trial Judgements that death or injury result from unlawful attacks and notes that while the Trial Chambers in those cases did not determine whether death or serious injury was a necessary element 385 Defence Appeal Brief paras 52-53 Defence Appeal Brief paras 52-53 387 Prosecution Response Brief para 6 23 388 Defence Appeal Brief para 44 389 Trial Judgement para 43 386 60 Case No IT-98-29-A 30 November 2006 of the offence it adjudged the offence only with respect to those attacks that actually caused death or serious injury 391 The Prosecution claims that there “was no error in declining to comment in abstracto upon whether unlawful attack charges could be sustained in the absence of serious civilian casualties” and in any event “no prejudice resulted” 392 128 The Appeals Chamber finds that there is a clear connection between the Indictment and the charges as interpreted by the Trial Chamber in paragraph 43 of the Trial Judgement the Indictment refers to killing and wounding of civilians and the Trial Chamber made its factual and legal findings only with respect to such events There was no obligation on the Trial Chamber to issue a purely hypothetical interpretation of the elements of attack on civilians and it did not do so Galić’s argument is accordingly dismissed b The targeting of civilians and military necessity 129 Galić submits that the Trial Chamber erred in finding that the targeting of civilians cannot be justified by military necessity 393 The Prosecution responds that the Blaškić Appeal Judgement makes clear that military necessity never justifies the targeting of civilians 394 130 The Appeals Chamber has previously emphasized that “there is an absolute prohibition on the targeting of civilians in customary international law”395 and that “the prohibition against attacking civilians and civilian objects may not be derogated from because of military necessity” 396 The Trial Chamber was therefore correct to hold that the prohibition of attacks against the civilians and the civilian population “does not mention any exceptions and does not contemplate derogating from this rule by invoking military necessity” 397 Galić’s argument is accordingly dismissed c Indiscriminate and disproportionate attacks 131 Galić contends that the Trial Chamber erred in law in holding that 1 “indiscriminate attacks that is to say attacks which strike civilians or civilian objects and military objectives without distinction may qualify as direct attacks against civilians” 398 and 2 “certain apparently disproportionate attacks may give rise to the inference that civilians were actually the object of 390 Prosecution Response Brief para 6 11 Prosecution Response Brief paras 6 10-6 11 referring to paragraphs 42 and 43 of the Trial Judgement 392 Prosecution Response Brief para 6 12 393 Defence Appeal Brief para 45 394 Defence Appeal Brief para 6 13 395 Blaškić Appeal Judgement para 109 396 Kordić and erkez Appeal Judgement para 54 397 Trial Judgement para 44 398 Trial Judgement para 57 See Defence Appeal Brief para 50 391 61 Case No IT-98-29-A 30 November 2006 attack” 399 He argues that neither disproportionate attacks nor indiscriminate attacks may qualify as direct attacks on civilians The Prosecution responds that the Trial Chamber did not err in determining that indiscriminate and disproportionate attacks may qualify as making civilians the object of attack or direct attacks400 and asserts that Galić does not specify how the Trial Chamber “erred in finding attacks against civilians to encapsulate indiscriminate attacks and attacks which violate the principle of proportionality” 401 It further argues that the Trial Chamber properly relied on the principle of distinction which obliges those directing attacks to do so only against military objectives as distinguished from civilian targets 402 The Prosecution argued at the Appeal Hearing that the principle of distinction can be violated when the target selected is not limited to a military objective or when the attack is carried out using a methodology that is incapable of distinguishing between military objectives and civilians to the extent required by the principle of proportionality 403 132 With regard to the Trial Chamber’s finding pertaining to indiscriminate attacks the Appeals Chamber notes that the Trial Chamber did not hold that such attacks always amount to direct attacks but rather that they “may qualify”404 as such It expressed its agreement with other Trial Chambers which “found that attacks which employ certain means of combat which cannot discriminate between civilians and civilian objects and military objectives are tantamount to direct targeting of civilians” 405 It referred to the Blaškić Trial Judgement where the Trial Chamber inferred from the weapons used that the perpetrators of the attacks wanted to target the civilian population 406 and to the Martić Rule 61 Decision where the Trial Chamber regarded the use of a cluster bomb warhead as evidence of the Accused’s intent to deliberately attack the civilian population 407 The Appeals Chamber finds that the impugned finding does not conflate the two crimes but rather supports the view that a direct attack can be inferred from the indiscriminate character of the weapon used In determining whether an attack was “directed against” the civilian population pursuant to Article 5 of the Statute the Appeals Chamber has previously held that many factors were involved including the type of weapon used T he expression “directed against” is an expression which “specifies that in the context of a crime against humanity the civilian population is the primary object of the attack In order to determine whether the attack may be said to have been so 399 Trial Judgement para 60 See Defence Appeal Brief para 50 Prosecution Response Brief para 6 17 AT 130 401 Prosecution Response Brief para 6 18 402 Prosecution Response Brief para 6 19 403 AT 130 404 Trial Judgement para 57 405 Trial Judgement fn 101 emphasis added 406 Blaškić Trial Judgement para 512 407 Martić Rule 61 Decision paras 23-31 400 62 Case No IT-98-29-A 30 November 2006 directed the Trial Chamber will consider inter alia the means and method used in the course of the attack the status of the victims their number … the nature of the crimes committed in its course the resistance to the assailants at the time and the extent to which the attacking force may be said to have complied or attempted to comply with the precautionary requirements of the laws of war 408 In principle the Trial Chamber was entitled to determine on a case-by-case basis that the indiscriminate character of an attack can assist it in determining whether the attack was directed against the civilian population Galić’s argument is accordingly dismissed 133 With regard to Galić’s argument that the Trial Chamber’s holding that “certain apparently disproportionate attacks may give rise to the inference that civilians were actually the object of attack” amounts to an error of law the Appeals Chamber notes that the Trial Chamber made clear that such inference had to be “determined on a case-by-case basis in light of the available evidence” 409 The Trial Chamber’s finding that disproportionate attacks “may” give rise to the inference of direct attacks on civilians is therefore a justified pronouncement on the evidentiary effects of certain findings not a conflation of different crimes The Appeals Chamber also notes in that respect that the Trial Chamber endeavoured in its evaluation of the evidence to consider questions such as distance between the victim and the most probable source of fire distance between the location where the victim was hit and the confrontation line combat activity going on at the time and the location of the incident as well as relevant nearby presence of military activities or facilities appearance of the victim as to age gender clothing the activity the victim could appear to be engaged in visibility of the victim due to weather unobstructed line of sight or daylight 410 134 The Trial Chamber clearly stated that it limited itself to attacks on civilians pursuant to Article 51 2 of Additional Protocol I which only contemplates direct attacks against the civilian population The definition it adopted of the offence is equally clear 411 No mention is made of indiscriminate or disproportionate attacks as the basis for conviction Accordingly this part of Galić’s ground of appeal is dismissed 408 Kunarac et al Appeal Judgement para 91 see also Blaškić Appeal Judgement para 106 Trial Judgement para 60 emphasis added 410 Trial Judgement para 188 411 Trial Judgement para 56 “In sum the Trial Chamber finds that the crime of attack on civilians is constituted of the elements common to offences falling under Article 3 of the Statute as well as of the following specific elements 1 acts of violence directed against the civilian population or individual civilians not taking direct part in hostilities causing death or serious injury to body or health within the civilian population 2 The offender wilfully made the civilian population or individual civilians not taking direct part in hostilities the object of those acts of violence ” 409 63 Case No IT-98-29-A 30 November 2006 d Individual combatants within the civilian population 135 Galić argues that the conclusions drawn in paragraphs 50 and 51 of the Trial Judgement are incorrect interpretations of the law 412 The Appeals Chamber understands this to be a reference to the Trial Chamber’s statement in those paragraphs that “ t he presence of individual combatants within the population does not change its civilian character” 413 and that only military objectives may be lawfully attacked 414 as well as the paragraphs’ discussions of these two assertions Galić founds this contention on the argument that the Trial Chamber’s analysis is “based on a one-sided application of the provisions of the Geneva Conventions” and in particular Additional Protocol I and that the analysis is “erroneous when taken as a ground for the application of Article 3 of the Statute” 415 136 The Appeals Chamber observes that there is nothing in the Defence Appeal Brief that identifies what in particular the Trial Chamber purportedly interpreted erroneously or “onesidedly” The Appeals Chamber notes however the seemingly absolute nature with which the Trial Chamber asserted that the presence of combatants within the civilian population “does not” change its otherwise civilian character 416 The Appeals Chamber finds that the jurisprudence of the International Tribunal in this regard is clear the presence of individual combatants within the population attacked does not necessarily change the fact that the ultimate character of the population remains for legal purposes a civilian one If the population is indeed a “civilian population” then the presence of combatants within that population does not change that characterisation In the Kordi and erkez Appeal Judgement the Appeals Chamber stated The civilian population comprises all persons who are civilians and the presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character 417 The Appeals Chamber considers that Article 50 of Additional Protocol I contains a definition of civilians and civilian populations and the provisions in this article may largely be viewed as reflecting customary law 418 137 If however one is discussing whether a population is civilian based on the proportion of civilians and combatants within it that is the status of the population has yet to be determined or may be changing due to the flow of civilians and military personnel then the conclusion is slightly 412 Defence Appeal Brief para 48 Trial Judgement para 50 414 Trial Judgement para 51 415 Defence Appeal Brief para 48 416 Trial Judgement para 50 417 Kordi and erkez Appeal Judgement para 50 418 Kordi and erkez Appeal Judgement para 97 413 64 Case No IT-98-29-A 30 November 2006 different The Blaškić Appeal Judgement qualified the general proposition of the Kordi and erkez Appeal Judgement with an important addendum It states quoting the ICRC Commentary that “in wartime conditions it is inevitable that individuals belonging to the category of combatants become intermingled with the civilian population for example soldiers on leave visiting their families However provided that these are not regular units with fairly large numbers this does not in any way change the civilian character of a population ”419 As such the Appeals Chamber in Blaškić found that “in order to determine whether the presence of soldiers within a civilian population deprives the population of its civilian character the number of soldiers as well as whether they are on leave must be examined” 420 138 The strict test apparently posited by the Trial Chamber namely that the presence of combatants within the civilian population “does not” change its status may seem to depart from the above finding of the Appeals Chamber However in footnote 91 of the Trial Judgement the Trial Chamber acknowledged the nuances of its position by referring to the above quotation of the ICRC Commentary as referred to in the Blaškić Appeal Judgement The Appeals Chamber therefore finds that the Trial Chamber was correct in its interpretation of the law in paragraphs 50 and 51 as it recognised the variable considerations with respect to determining the characterisation of a given population Galić’s argument is accordingly dismissed 3 Mens rea of the crime of attack on civilians 139 Galić contends with respect to the mens rea of the crime of attack on civilians that the Trial Chamber erred in law by including as a subjective element of the crime the concept of “negligence or some other attitude of the person committing the action” or indeed anything other than “the wish to cause the actual consequence” of the action 421 The Prosecution responds that this contention is based on an erroneous reading of the Trial Judgement as the Trial Chamber found that the requisite mens rea for this offence was wilfulness 422 140 In its discussion of the mens rea of the crime at issue the Trial Chamber found that the perpetrator must undertake the attack “wilfully” which it defines as wrongful intent or recklessness and explicitly not “mere negligence” 423 The Trial Chamber relied on the ICRC Commentary to Article 85 of Additional Protocol I which defines intent for the purposes of Article 51 2 and clearly distinguishes recklessness “the attitude of an agent who without being certain of 419 Blaškić Appeal Judgement para 115 citing ICRC Commentary Additional Protocols para 1922 Blaškić Appeal Judgement para 115 421 Defence Appeal Brief paras 46-47 422 Prosecution Response Brief paras 6 15-6 16 423 Trial Judgement para 54 “the notion of ‘wilfully’ incorporates the concept of recklessness whilst excluding mere negligence The perpetrator who recklessly attacks civilians acts ‘wilfully’ ” 420 65 Case No IT-98-29-A 30 November 2006 a particular result accepts the possibility of its happening” from negligence which describes a person who “acts without having his mind on the act or its consequences” 424 The Trial Chamber’s reasoning in this regard is correct and Galić offers no support for his contention that the Trial Chamber committed an error of law Thus to the extent that Galić impugns this specific finding his argument is without merit and accordingly dismissed Galić’s sixth ground of appeal is dismissed 424 ICRC Commentary Additional Protocols para 3474 cited in Trial Judgement para 54 66 Case No IT-98-29-A 30 November 2006 IX GROUND 8 ALLEGED ERRORS OF LAW CONCERNING CRIMES UNDER ARTICLE 5 OF THE STATUTE 141 Galić contests various legal findings of the Trial Chamber made in the context of crimes charged under Article 5 of the Statute A Chapeau requirements of Article 5 of the Statute 142 Galić claims that the Trial Chamber’s holdings as regards the chapeau requirements of Article 5 of the Statute are legally untenable in particular as regards the Trial Chamber’s definition of “civilians” in the context of an attack on a civilian population 425 As concerns the mens rea he submits that the perpetrator must know of the wider context in which the underlying crime occurred and must know that his conduct is part of an attack on civilians 426 Gali argues that he was never informed of any deliberate unlawful attack against civilians nor was he aware that his conduct was part of any such attack 427 Galić further argues that there was evidence before the Trial Chamber showing that he ordered the cessation of any attack which could have caused civilian casualties as soon as he became aware of its existence thus proving that he did not order the targeting of civilians 428 143 The Prosecution responds that the Trial Chamber’s definition of civilian is consistent with the International Tribunal’s settled jurisprudence 429 As regards Galić’s mens rea it submits that Gali appears to allege errors of fact430 and simply repeats arguments rejected at trial 431 The Prosecution contends that the evidence presented to the Trial Chamber demonstrated Gali ’s knowledge of crimes committed by SRK units through evidence establishing a functioning chain of command and reports from outsiders 432 and argues that Galić has not shown how those findings were unreasonable 433 With regard to Galić’s last argument the Prosecution responds that the Trial Chamber found that he might have issued orders not to target civilians but that targeting continued nonetheless 434 144 The Appeals Chamber notes that Gali does not contest all the findings of the Trial Chamber regarding the chapeau requirement of a civilian population but merely alleges an error in the Trial 425 Defence Appeal Brief para 87 Defence Appeal Brief para 88 427 Defence Appeal Brief para 88 428 Defence Appeal Brief para 89 429 Prosecution Response Brief para 8 3 430 Prosecution Response Brief para 8 4 431 Prosecution Response Brief para 8 6 432 Prosecution Response Brief para 8 7 433 Prosecution Response Brief para 8 6 426 67 Case No IT-98-29-A 30 November 2006 Chamber’s definition of “civilians” The Trial Chamber held when considering the chapeau requirement of a “civilian population” that “ t he definition of a ‘civilian’ is expansive and includes individuals who at one time performed acts of resistance as well as persons hors de combat when the crime was perpetrated” 435 The Trial Chamber did not intend to give a definition of an individual civilian 436 indeed it would not necessarily be correct to state as the Trial Chamber’s wording seems to suggest that a person hors de combat is a civilian in the context of international humanitarian law 437 The Appeals Chamber understands the Trial Chamber to reiterate wellestablished jurisprudence regarding the chapeau element of “civilian population” As such the Appeals Chamber has previously held that “the presence within a population of members of resistance groups or former combatants who have laid down their arms does not alter its civilian characteristic” 438 Likewise the presence of soldiers does not necessarily deprive a civilian population of its civilian character 439 nor does the presence of persons hors de combat The Appeals Chamber in the Kordi and Čerkez Appeal Judgement stated that “ t he civilian population comprises all persons who are civilians and the presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character ”440 Gali ’s argument in this regard is therefore rejected 145 As regards his knowledge of the attacks on civilians Galić submits that the Prosecution “has failed to prove the requirements in the case against him ” that he was “never informed of an unlawful attack against civilians deliberately undertaken and in his case one cannot claim that he was aware that his conduct was part of any such attack” 441 He reiterates arguments made at trial and does not present argumentation as to why his claim should succeed on appeal 434 Prosecution Response Brief para 8 8 Trial Judgement para 143 436 The Appeals Chamber notes that the Krnojelac Trial Judgement referred to by the Trial Chamber in its footnote reads “ t he definition of civilian” meaning the word civilian in the element of “civilian population” and not “a civilian” as referred to in the Gali Trial Judgement 437 See Blaski Appeal Judgement para 114 “If he is indeed a member of an armed organization the fact that he is not armed or in combat at the time of the commission of the crimes does not accord him civilian status ” Persons hors de combat are certainly protected in armed conflicts through Common Article 3 of the Geneva Conventions This reflects a principle of customary international law Bla ki Appeal Judgement fn 220 Even hors de combat however they would still be members of the armed forces of a party to the conflict and therefore fall under the category of persons referred to in Article 4 A 1 of the Third Geneva Convention as such they are not civilians in the context of Article 50 paragraph 1 of Additional Protocol I Common Article 3 of the Geneva Conventions supports this conclusion in referring to “ p ersons taking no active part in the hostilities including members of armed forces who have laid down their arms and those placed hors de combat by sickness wounds detention or any other cause” emphasis added 438 Bla ki Appeal Judgement para 113 439 Bla ki Appeal Judgement para 115 “ I n order to determine whether the presence of soldiers within a civilian population deprives the population of its civilian character the number of soldiers as well as whether they are on leave must be examined ” 440 Kordić and Čerkez Appeal Judgement para 50 441 Defence Appeal Brief para 88 435 68 Case No IT-98-29-A 30 November 2006 146 The Appeals Chamber considers that Galić’s submission in this section is not an argument against the law applied by the Trial Chamber but rather a challenge to its findings of fact His arguments are not further substantiated as allegations of errors of fact in this section of the Defence Appeal Brief and they go beyond the Notice of Appeal regarding his eighth ground of appeal which is limited to errors of law The Appeals Chamber therefore declines to consider Gali ’s submissions in this regard Moreover the Appeals Chamber notes that Galić attacks the related findings of fact in greater detail in grounds 17 and 18 of his Defence Appeal Brief His arguments in that respect will accordingly be dealt with under those grounds B Murder 147 The Trial Chamber relying on other Trial Chambers’ findings defined murder under Article 5 of the Statute as follows The basic requirements for murder as a crime against humanity are that a the victim died b the victim’s death was caused by an act or omission of the accused or of a person or persons for whose acts or omissions the accused bears criminal responsibility and c the act was done or the omission was made by the accused or by a person or persons for whose acts or omissions the accused bears criminal responsibility with an intention i to kill or ii to inflict serious injury in reckless disregard of human life 148 442 Regarding the actus reus of murder under Article 5 of the Statute Gali argues that an act cannot constitute murder if 1 it consists of an omission rather than a commission especially “when there is a distance between the alleged victim and the perpetrator” or 2 if the act of killing is carried out by another person 443 In response the Prosecution contends that Galić cites no authority in support of his contentions 444 It argues first that the International Tribunal’s jurisprudence establishes that an omission can constitute murder445 and second that Article 7 of the Statute demonstrates that a crime can be attributed to one person even where another did the causative action through forms such as ordering and superior responsibility 446 442 Trial Judgement para 150 footnotes omitted Defence Appeal Brief para 91 444 Prosecution Response Brief para 8 10 445 Prosecution Response Brief para 8 11 446 Prosecution Response Brief para 8 13 443 69 Case No IT-98-29-A 30 November 2006 149 The Appeals Chamber has previously held that murder can be committed through an act or an omission 447 Further as previously held by the Appeals Chamber regarding Article 7 1 of the Statute448 and as demonstrated by Article 7 3 of the Statute the Appeals Chamber reiterates that the commission of a positive act is not an absolute requirement of criminal responsibility 150 With respect to Gali ’s second argument the Appeals Chamber notes that the Statute expressly contemplates attaching criminal responsibility to an accused for the acts of another and the International Tribunal has done so on numerous occasions Even if the physical perpetration of the act of murder was committed by another person Article 7 of the Statute attaches criminal liability for all the crimes articulated in Articles 2 to 5 of the Statute including murder to those who did not actually perpetrate the physical act but either “planned instigated ordered … or otherwise aided and abetted in the planning preparation or execution” 449 or in the case of superiors “knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof” 450 Gali ’s argument is therefore rejected 151 Regarding the mens rea requirement of murder Gali contends that an action cannot be murder if death is a consequence of the infliction of serious injury and the consequence is due to the perpetrator's negligence 451 In response the Prosecution contends that specific intent to kill is not part of the mens rea for murder452 and that the Trial Chamber did not apply a negligence standard 453 In that respect it argues that the Trial Chamber required a finding of “an intention … to kill or to inflict serious injury in reckless disregard of human life” 454 It further claims that Stanislav Galić has confused negligence and recklessness and that recklessness is an appropriate mens rea for ordering murder as held in the Bla ki Appeal Judgement 455 152 The Appeals Chamber notes that Gali was not convicted for committing murder but for ordering murder under Article 7 1 of the Statute which only requires that he was aware of the substantial likelihood that murder would be committed in the execution of his orders 456 447 Kvočka et al Appeal Judgement para 261 Although this holding was made for murder under Article 3 of the Statute the Appeals Chamber sees no reason why it would be any different for murder under Article 5 of the Statute 448 Bla ki Appeal Judgement para 663 449 Article 7 1 of the Statute 450 Article 7 3 of the Statute 451 Defence Appeal Brief para 92 452 Prosecution Response Brief para 8 16 453 Prosecution Response Brief para 8 17 454 Prosecution Response Brief para 8 17 455 Prosecution Response Brief para 8 18 456 Bla ki Appeal Judgement para 42 Kordi and erkez Appeal Judgement para 30 70 Case No IT-98-29-A 30 November 2006 Consequently there is no reason for the Appeals Chamber to consider on their merits Gali ’s arguments pertaining to the mens rea required for committing murder 457 153 For the foregoing reasons this part of Galić’s ground of appeal is dismissed C Inhumane acts 154 Gali submits that the Trial Chamber erred in its definition of “other inhumane acts” pursuant to Article 5 i of the Statute 458 His arguments concern both the actus reus and the mens rea required for the crime of inhumane acts 155 459 act As regards the actus reus Gali contends that an omission cannot constitute an inhumane The Prosecution responds that the jurisprudence of the International Tribunal establishes that inhumane acts can consist of omissions 460 In that regard the Appeals Chamber adopts mutatis mutandis its above discussion on an accused’s criminal responsibility for an act of omission regarding the crime of murder 461 This part of Galić’s ground of appeal is therefore dismissed 156 As regards the mens rea of the crime of inhumane acts Gali argues that the Prosecution must prove that the perpetrator had the “will to directly produce the consequence” 462 He contends that “ c onsent to the consequence excludes the intention” and that merely accepting the consequence does not make a person responsible for crimes 463 The Prosecution responds that Galić is positing a standard of specific intent as the minimum mens rea required for the crime of other inhumane acts without proposing any authority for this view The Prosecution argues that the jurisprudence of the International Tribunal has required lesser mental states in order to prove other inhumane acts 464 157 The Appeals Chamber notes that Gali was not convicted for committing inhumane acts but for ordering inhumane acts under Article 7 1 of the Statute which only requires that he was aware of the substantial likelihood that inhumane acts would be committed in the execution of his 457 When an error has no chance of changing the outcome of a decision it may be rejected on that ground See Stakić Appeal Judgement para 8 Kvo ka et al Appeal Judgement para 16 Krnojelac Appeal Judgement para 10 458 Defence Appeal Brief para 93 459 Defence Appeal Brief para 94 460 Prosecution Response Brief para 8 19 461 See also the definition of inhumane acts given at paragraph 234 of the Vasiljevi Trial Judgement confirmed at paragraph 165 of the Vasiljevi Appeal Judgement See supra para 149 462 Defence Appeal Brief para 95 463 Defence Appeal Brief para 96 464 Prosecution Response Brief paras 8 21-8 22 71 Case No IT-98-29-A 30 November 2006 orders 465 Consequently there is no reason for the Appeals Chamber to consider Galić’s arguments pertaining to the mens rea required for committing inhumane acts 158 The Appeal Chamber further notes that the Trial Chamber did not expressly determine which acts constituted other inhumane acts the actus reus Although the Trial Chamber did not do so the Appeals Chamber finds that it did point in its analysis of the scheduled incidents to numerous acts that qualify as such For the scheduled sniping incidents the Trial Chamber pointed to the serious injuries inflicted and held that those injuries were the result of deliberate sniping by members of the SRK forces for whose acts Galić bore criminal responsibility 466 The same applies to the scheduled shelling incidents for which the Trial Chamber made specific findings related to serious injuries and found that the shells were deliberately fired at areas where civilians would be seriously injured as a result 467 159 The Appeals Chamber accordingly dismisses Galić’s eighth ground of appeal 465 Bla ki Appeal Judgement para 42 Kordi and erkez Appeal Judgement para 30 See e g Trial Judgement paras 258 271 276 289 317 321 360 367 518 537 551 555 467 See e g Trial Judgement paras 397 496 466 72 Case No IT-98-29-A 30 November 2006 X GROUND 9 ERRORS OF LAW IN CONNECTION WITH CUMULATIVE CHARGES AND CONVICTIONS 160 Under his ninth ground of appeal Galić challenges the finding of the Trial Chamber that the charges against him and his convictions for murder inhumane acts and attacks on civilians were permissible in light of the law on cumulative charging and cumulative convictions 468 A Cumulative charges 161 Galić reiterates the argument he raised at trial that an accused cannot be cumulatively charged with different crimes on the basis of the same set of acts 469 As correctly noted by the Trial Chamber the Appeals Chamber has consistently held that “cumulative charging constitutes the usual practice of both this Tribunal and the ICTR” and “is to be allowed in light of the fact 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” 470 This part of Galić’s ninth ground of appeal is accordingly dismissed B Cumulative convictions 162 Galić was convicted of one count of acts of violence the primary purpose of which is to spread terror among the civilian population pursuant to Article 3 of the Statute Count 1 two counts of murder pursuant to Article 5 a of the Statute one based on sniping Count 2 and one based on shelling Count 5 and two counts of inhumane acts pursuant to Article 5 i of the Statute one based on sniping Count 3 and one based on shelling Count 6 471 The Trial Chamber considered that the finding of guilt on Count 1 necessitated dismissal of two counts of attacks on civilians under Article 3 of the Statute Counts 4 and 7 for the same acts 472 Galić makes several arguments that the convictions entered against him are impermissibly cumulative His arguments pertain to cumulative convictions under Articles 3 and 5 of the Statute and cumulative convictions under Article 5 of the Statute 163 Before addressing Galić’s arguments the Appeals Chamber notes that the International Tribunal’s established jurisprudence is that multiple convictions entered under different statutory 468 Defence Appeal Brief paras 97-106 Defence Appeal Brief para 97 fn 64 See also Trial Judgement para 156 fn 268 referring to Defence Pre-Trial Brief paras 8 18 8 19 8 24 and Defence Final Trial Brief paras 1099 1101 1102 1104 470 Trial Judgement para 156 citing paragraph 400 of the elebi i Appeal Judgement See also Kupreškić et al Appeal Judgement para 385 Kunarac et al Appeal Judgement para 167 Naletili and Martinovi Appeal Judgement Appeal Judgement para 103 471 Trial Judgement para 769 472 Trial Judgement para 162 469 73 Case No IT-98-29-A 30 November 2006 provisions but based on the same conduct are permissible only if each statutory provision has a materially distinct element not contained within the other 473 An element is materially distinct from another if it requires proof of a fact not required by the other 474 Where this test is not met only the conviction under the more specific provision will be entered 475 The Appeals Chamber has noted that in such circumstances “ t he more specific offence subsumes the less specific one because the commission of the former necessarily entails the commission of the latter” 476 1 Cumulative convictions under Articles 3 and 5 of the Statute 164 Galić argues that the Trial Chamber erred in law by entering convictions under Article 3 of the Statute intent to spread terror among the civilian population and Article 5 of the Statute murder and inhumane acts for the same acts 477 He argues that the Trial Chamber must have considered an act to be “two or more different criminal acts” in order to enter multiple convictions for that act and argues that this would be “untenable in criminal law” 478 165 The Appeals Chamber concurs with the Trial Chamber that convictions for the same conduct under Article 3 of the Statute violations of the laws or customs of war and Article 5 of the Statute crimes against humanity are permissible since Articles 3 and 5 of the Statute require proof of distinct non-cumulative elements 479 It agrees with the Trial Chamber that the crime of acts or threats of violence the primary purpose of which is to spread terror among the civilian population under Article 3 of the Statute requires proof of a close link between the acts of the accused and the armed conflict which is an element not required for the crimes charged under Article 5 of the Statute Similarly the crimes of murder and inhumane acts under Article 5 of the Statute require proof that the act of the accused formed part of a widespread or systematic attack against a civilian population which is not required for the crime charged under Article 3 of the Statute 480 Accordingly this part of Galić’s ninth ground of appeal is dismissed 473 Čelebići Appeal Judgement para 412 see also Naletilić and Martinović Appeal Judgement para 584 Stakić Appeal Judgement para 355 Krstić Appeal Judgement para 218 Kunarac et al Appeal Judgement para 168 Kupreškić et al Appeal Judgement para 387 Jelisić Appeal Judgement para 78 474 Čelebići Appeal Judgement para 412 see also Naletilić and Martinović Appeal Judgement para 584 Stakić Appeal Judgement para 355 Krstić Appeal Judgement para 218 Kunarac et al Appeal Judgement paras 168 173 Kupreškić et al Appeal Judgement para 387 Jelisić Appeal Judgement para 78 475 Čelebići Appeal Judgement para 413 see also Stakić Appeal Judgement para 355 Krstić Appeal Judgement para 218 Kunarac et al Appeal Judgement para 168 Kupreškić et al Appeal Judgement para 387 Jelisić Appeal Judgement para 79 476 Krstić Appeal Judgement para 218 477 Defence Appeal Brief para 100 478 Defence Appeal Brief para 101 referring to Čelebići Appeal Judgement paras 410-420 479 Trial Judgement para 163 citing Jelisić Appeal Judgement para 82 480 Vasiljević Appeal Judgement para 145 Kunarac et al Appeal Judgement para 176 Kupreškić et al Appeal Judgement para 387 Jelisić Appeal Judgement para 82 74 Case No IT-98-29-A 30 November 2006 2 Cumulative convictions under Article 5 of the Statute 166 Galić argues that the Trial Chamber erred when entering convictions under Article 5 a of the Statute murder and Article 5 i of the Statute inhumane acts for the same conduct when that conduct resulted in the death of the victim 481 He states that he “does not contest” the possibility of conviction under Article 5 i of the Statute when the conduct charged did not result in the death of the victim 482 but argues that if the victim died and a conviction was entered for murder under Article 5 a of the Statute then a conviction for inhumane acts under Article 5 i of the Statute could not also be entered because the latter would be “absorb ed ” in the former 483 167 As the Trial Chamber correctly noted the issue of cumulative convictions does not arise in the present case The counts of murder and inhumane acts as crimes against humanity are not based upon the same criminal conduct They seek to punish respectively murder of civilians through sniping and shelling attacks Article 5 a of the Statute and other harm suffered by civilians through sniping and shelling attacks in particular serious injury Article 5 i of the Statute 484 The Appeals Chamber agrees with the Trial Chamber that separate convictions are permissible for murder and inhumane acts which relate to distinct victims as they do here Galić does not demonstrate that the Trial Chamber convicted him twice for injuring and killing the same victims The Trial Chamber for example found that separate incidents of sniping resulted in the death of some victims485 and serious mental or physical suffering or injury of others 486 This part of his ninth ground of appeal is accordingly dismissed 168 Galić also argues that the Trial Chamber erred by convicting him separately on two counts of murder and two counts of inhumane acts when he claims the counts were distinguished only by the means of perpetration to wit murder by sniping and murder by shelling and inhumane acts by sniping and inhumane acts by shelling 487 As the Prosecution rightly notes the two counts for murder and two counts for inhumane acts relate to separate conduct “Neither the victims nor the 481 Defence Appeal Brief para 103 Defence Appeal Brief para 102 483 Defence Appeal Brief paras 103-104 484 Trial Judgement para 164 485 See Trial Judgement paras 247-253 “Scheduled Sniping Incident 5” ibid paras 277-284 “Scheduled Incident 20” ibid paras 352-356 “Scheduled Sniping Incident 6” 486 See Trial Judgement paras 254-258 “Scheduled Sniping Incident 24” ibid paras 267-271 “Scheduled Incident 10” ibid paras 272-276 “Scheduled Sniping Incident 15” ibid paras 285-289 “Scheduled Incident 27” ibid paras 311-317 “Scheduled Sniping Incident 23” ibid paras 318-327 “Scheduled Incident 25” ibid paras 357-361 “Scheduled Sniping Incident 18” 487 Defence Appeal Brief para 106 Defence Reply Brief paras 77-78 482 Sniping Sniping Sniping Sniping 75 Case No IT-98-29-A 30 November 2006 injury inflicted were the same ”488 As such Galić’s argument is misplaced in a ground of appeal challenging cumulative convictions which should only be concerned with convictions for the same underlying conduct Galić’s ninth ground of appeal is dismissed 488 Prosecution Response Brief para 9 2 76 Case No IT-98-29-A 30 November 2006 XI GROUND 10 ERROR OF LAW IN DETERMINING CRIMINAL RESPONSIBILITY 169 Gali contests certain holdings of the Trial Chamber made in the context of the law relating to determining criminal responsibility under Articles 7 1 and 7 3 of the Statute A Challenges relating to Article 7 1 responsibility 1 The Trial Chamber’s reliance on circumstantial evidence 170 Gali challenges the alleged holding of the Trial Chamber “that the proof of all forms of criminal responsibility can be proved by direct or circumstantial evidence” 489 He claims that “ordering” cannot be established by circumstantial evidence and certainly not in the manner adopted by the Trial Chamber 490 He further argues that the mens rea of an accused cannot be inferred but must be proved “in a clear manner and must clearly point to the will of the accused to act in the manner in which he did in order to produce the foreseen consequence” 491 The Prosecution responds that Gali provides no reasons in support of this argument and that it should therefore be dismissed In addition it considers that circumstantial evidence is sufficient in general sufficient in relation to establishing the mens rea and sufficient with respect to establishing the mode of liability of ordering 492 171 The Appeals Chamber notes that it is well established that facts can be proven by either direct or circumstantial evidence The Appeals Chamber reiterates its earlier statement in the Kupre ki et al Appeal Judgement that in principle a conviction may be based upon circumstantial evidence alone 493 172 Accordingly Gali ’s argument is dismissed 2 The omissions of an accused and the Trial Chamber’s finding that Gali ordered the crimes 173 Gali asserts that acts of persons accused under Article 7 1 of the Statute may not be acts committed by culpable omission and that the Trial Chamber made an erroneous legal finding in this regard 494 He argues that a positive action “which clearly indicates the participation in the unlawful 489 Defence Appeal Brief para 111 Defence Appeal Brief para 111 491 Defence Appeal Brief paras 112 546 492 Prosecution Response Brief paras 10 9-10 10 493 Kupreškić et al Appeal Judgement para 303 See also Stakić Appeal Judgement para 219 Ntagerura et al Appeal Judgement paras 304-306 494 Defence Appeal Brief para 108 referring to Trial Judgement para 168 490 77 Case No IT-98-29-A 30 November 2006 action” is required for responsibility under Article 7 1 of the Statute 495 He also challenges the holding of the Trial Chamber that “a superior may be found responsible under Article 7 1 of the Statute where the superior’s conduct had a positive effect in bringing about the commission of crimes by his or her subordinates provided the mens rea requirements for Article 7 1 responsibility are met” 496 174 In response the Prosecution argues that omissions are an accepted form of liability under the Statute 497 It also argues that the actual findings of the Trial Chamber indicate active conduct and active ordering 498 The Prosecution considers that the reference of the Trial Chamber to Galić’s failure to act was relevant to his mens rea and could have supported the actus reus for ordering 499 It claims “The Chamber did not rely on Galić ’s failure to take certain steps but on all his conduct to find that he ordered the campaign of sniping and shelling The Chamber’s findings on his inaction support its findings regarding his mens rea ”500 The Prosecution further argues that ample Tribunal jurisprudence supports the Trial Chamber’s proposition that any conduct whether active or passive which contributes to or facilitates the commission of a crime may result in liability under Article 7 1 of the Statute 501 175 502 act The Appeals Chamber affirms that the omission of an act where there is a legal duty to can lead to individual criminal responsibility under Article 7 1 of the Statute 503 Gali ’s argument in this regard is therefore dismissed Nevertheless the Appeals Chamber clarifies several points with regard to the mode of responsibility of ordering pursuant to Article 7 1 of the Statute 176 The Appeals Chamber recalls that the actus reus of ordering has been defined as a person in a position of authority instructing another person to commit an offence a formal superiorsubordinate relationship between the accused and the actual physical perpetrator not being required 504 The Appeals Chamber finds that the very notion of “instructing” requires a positive action by the person in a position of authority 505 The failure to act of a person in a position of 495 Defence Appeal Brief para 109 Defence Appeal Brief para 110 citing paragraph 169 of the Trial Judgement The Trial Chamber continued “ A superior with a guilty mind may not avoid Article 7 1 responsibility by relying on his or her silence or omissions … where the effect of such conduct is to commission crimes by subordinates ” Trial Judgement para 169 497 Prosecution Response Brief paras 8 11 10 1 498 Prosecution Response Brief paras 10 2-10 3 499 Prosecution Response Brief para 10 4 500 Prosecution Response Brief para 10 5 501 Prosecution Response Brief paras 10 7-10 8 502 See Ntagerura et al Appeal Judgement paras 334-335 503 Bla ki Appeal Judgement para 663 See also Tadi Appeal Judgement para 188 “This provision Article 7 1 of the Statute covers first and foremost the physical perpetration of a crime by the offender himself or the culpable omission of an act that was mandated by a rule of criminal law ” 504 Kordi and erkez Appeal Judgement para 28 Semanza Appeal Judgement para 361 505 See Bla ki Appeal Judgement para 660 496 78 Case No IT-98-29-A 30 November 2006 authority who is in a superior-subordinate relationship with the physical perpetrator may give rise to another mode of responsibility under Article 7 1 of the Statute or superior responsibility under Article 7 3 of the Statute 506 However the Appeals Chamber cannot conceive of a situation in which an order would be given by an omission in the absence of a prior positive act 507 The Appeals Chamber concludes that the omission of an act cannot equate to the mode of liability of ordering under Article 7 1 of the Statute 508 177 In the present case the Appeals Chamber notes that Gali conflates two separate issues 1 whether an omission can constitute an act of ordering and 2 whether an act of ordering can be proven by taking into account omissions The Trial Chamber here employed the latter approach which does not constitute a legal error It did not find Gali guilty for having ordered the crimes by his failure to act or culpable omissions That is it did not infer from the evidence the fact that he omitted an act and that this omission constituted an order Rather where the Trial Chamber mentions failures to act it took those failures into account as circumstantial evidence to prove the mode of liability of ordering The Trial Chamber inferred from the evidence adduced at trial which included inter alia acts and omissions of the accused that Gali had given the order to commit the crimes 509 178 The Appeals Chamber thus concludes that the mode of liability of ordering can be proven like any other mode of liability by circumstantial or direct evidence taking into account evidence of acts or omissions of the accused The Trial Chamber must be convinced beyond reasonable doubt from the evidence adduced at trial that the accused ordered the crime 510 Whether or not the Trial Chamber could have inferred from the evidence adduced at trial that Gali had ordered the crimes is a question of fact and will be addressed as part of his eighteenth ground of appeal 179 For the foregoing reasons Gali ’s argument is dismissed B Challenges relating to Article 7 3 responsibility 180 While he does not contest the conditions that must be met before a person can be held responsible pursuant to Article 7 3 of the Statute 511 Gali raises three challenges to the Trial 506 When for example a person is under a duty to give an order but fails to do so individual criminal responsibility may incur pursuant to Article 7 1 or Article 7 3 of the Statute 507 The Appeals Chamber however notes that this has to be distinguished from the fact that a superior may be criminally liable if he orders an omission The Appeals Chamber has held that a “person who orders an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that order” has the requisite mens rea for ordering Bla ki Appeal Judgement para 42 Kordi and erkez Appeal Judgement para 30 508 It would thus be erroneous to speak of “ordering by omission” 509 Trial Judgement para 749 “General Gali is guilty of having ordered the crimes proved at trial ” 510 Stakić Appeal Judgement para 219 511 Defence Appeal Brief para 113 referring to paragraph 173 of the Trial Judgement 79 Case No IT-98-29-A 30 November 2006 Chamber’s findings on his Article 7 3 responsibility First he contests the Trial Chamber’s holding that the superior’s actual knowledge of offences committed by his subordinates may be established through circumstantial evidence 512 Second he argues that the UN Commission of Experts Report may not “be taken into consideration when determining whether the requirements for responsibility under Article 7 3 of the Statute have been met” as the Report is based on “assumptions and superficial information” 513 Third he contests the Trial Chamber’s position on the manner in which the requirement that the accused “had reason to know” may be determined arguing that “ i nformation about the conduct of the subordinates must be sufficient for a superior to order an investigation which is conducted for precisely determined misconducts and according to precisely designated persons or at least against a circle of persons” and that “General Gali never received such information” 514 181 In response to Gali ’s first argument the Prosecution refers to its submissions on his Article 7 1 responsibility 515 It claims that his second argument is based on a misunderstanding It claims that the Trial Chamber did not rely on factual findings contained in the Report rather it relied on propositions of a legal nature and certain indicia from which a Trial Chamber may infer knowledge of a superior 516 The Prosecution claims that Gali provides no reasoning in support of his third argument and fails to consider the jurisprudence of the International Tribunal on this point 517 182 In relation to Gali ’s first argument the Appeals Chamber adopts mutatis mutandis its above holdings made with respect to this same argument advanced in relation to Galić’s Article 7 1 responsibility 518 This argument is therefore dismissed 183 Turning to Gali ’s second argument the Appeals Chamber notes that the Trial Chamber held that it may consider inter alia the indicia given by the UN Commission of Experts Report 519 The factors mentioned in the Report are not factual findings they are indicia that can be used along with other factors These indicia were not considered by the Trial Chamber to be in any way binding upon it because they were contained in the Report Gali ’s argument is therefore dismissed 184 As to Gali ’s third argument the Appeals Chamber notes that the jurisprudence of the International Tribunal indicates that the “had reason to know” standard will only be satisfied if information was available to the superior which would have put him on notice of offences 512 Defence Appeal Brief para 114 Defence Appeal Brief para 114 See also Defence Reply Brief para 85 514 Defence Appeal Brief para 115 515 Prosecution Response Brief para 10 13 516 Prosecution Response Brief para 10 14 517 Prosecution Response Brief paras 10 16-10 17 518 See supra para 171 513 80 Case No IT-98-29-A 30 November 2006 committed by his subordinates 520 The information in question need not however “have the form of specific reports submitted pursuant to a monitoring system” and “does not need to provide specific information about unlawful acts committed or about to be committed” 521 Here the Trial Chamber properly found that Galić was “fully appraised of the unlawful sniping and shelling at civilians taking place in the city of Sarajevo and its surroundings” 522 Accordingly his argument is dismissed C Challenge to concurrent application of Articles 7 1 and 7 3 of the Statute 185 Gali argues that the Trial Chamber erred in holding that the concurrent application of Article 7 1 and 7 3 of the Statute is possible claiming that one form of responsibility excludes the other Accordingly Galić considers the Trial Chamber made an error invalidating the Trial Judgement 523 The Prosecution responds that the Trial Chamber did not claim that concurrent conviction under Article 7 1 and 7 3 of the Statute is possible and that it convicted Gali only under Article 7 1 of the Statute 524 186 The Appeals Chamber notes that the holding of the Trial Judgement challenged by Gali reads “ I n cases where concurrent application of Articles 7 1 and 7 3 of the Statute is possible because the requirements of the latter form of responsibility are satisfied alongside those of the former the Trial Chamber has the discretion to choose the head of responsibility most appropriate to describe the criminal responsibility of the accused ”525 It is evident from this passage that the Trial Chamber did not hold that concurrent convictions under Articles 7 1 and 7 3 of the Statute are possible but rather that the facts of any given case may satisfy both articles in which case a Trial Chamber may then choose between them As noted in the Bla ki Appeal Judgement a conviction should be entered under Article 7 1 of the Statute only while treating the accused’s superior position as an aggravating factor in sentencing 526 Accordingly there was no error on the part of the Trial Chamber Galić’s tenth ground of appeal is dismissed 519 Trial Judgement para 174 elebi i Appeal Judgement para 241 521 elebi i Appeal Judgement para 238 522 Trial Judgement para 705 523 Defence Appeal Brief para 116 See also Defence Reply Brief paras 88-89 524 Prosecution Response Brief para 10 18 525 Trial Judgement para 177 526 Blaski Appeal Judgement para 91 520 81 Case No IT-98-29-A 30 November 2006 XII GROUND 12 COLLATERAL DAMAGE 187 Galić argues under his twelfth ground of appeal that the issue of collateral damage was not examined by the Trial Chamber He contends that by not doing so the Trial Chamber denied him a fair trial pursuant to Article 21 of the Statute 527 and that the Appeals Chamber should either order a retrial or acquit him on all counts 528 He argues that the SRK military actions would always be preceded by an assessment of the possible civilian casualties and that such potential casualties would be weighed against the possible military advantage 529 He argues that the Trial Chamber failed to assess properly whether the SRK actions were conducted in accordance with the principles of distinction and proportionality 530 Further Galić claims that the Trial Chamber in reaching its determination of these issues failed to consider 1 “dual use” objects – objects used concurrently for civilian and military purposes 531 2 the possibility of artillery errors 532 3 the use of civilians as “human shields” 533 and 4 the position of the confrontation line 534 188 The Prosecution responds that Galić’s arguments are “not proper submissions on appeal and must be dismissed in limine” 535 It contends that “aside from expressing general dissatisfaction with the Chamber’s approach Gali fails to specify which findings of the Chamber he alleges to be in error or to advance arguments in support of this contention and does not demonstrate that such alleged errors require the Appeals Chamber’s corrective intervention” 536 However should the Appeals Chamber consider the arguments raised by Galić the Prosecution submits that “the Trial Chamber undertook both in relation to each scheduled incident and more generally a careful analysis of the possibility that the civilian victims in question were the unintended victims of combat” and that in doing so the Trial Chamber “satisfied itself that no reasonable possibility existed that the victim or victims could have been mistaken for combatants or unintentionally killed or injured by nearby fighting” 537 It also notes that the Trial Chamber declined to consider incidents where victims could have been killed or injured as a result of an incidental effect of warfare 538 In 527 Defence Notice of Appeal para 79 Defence Notice of Appeal para 81 529 Defence Appeal Brief para 142 530 Defence Appeal Brief para 144 531 Defence Appeal Brief para 145 532 Defence Appeal Brief paras 148 402 Defence Reply Brief paras 105 107 533 Defence Appeal Brief paras 151-152 156 534 Defence Appeal Brief para 155 Galić also refers at paragraphs 159-160 of the Defence Appeal Brief to the “recent war in Iraq” as “a clear indication that unfortunately it is absolutely impossible to avoid collateral damage when war is waged in urban theatres” He claims that the Trial Chamber should have considered his arguments in that respect However no such argument was brought before the Trial Chamber nor was any additional evidence admitted on appeal 535 Prosecution Response Brief para 12 2 536 Prosecution Response Brief para 12 4 537 Prosecution Response Brief para 12 5 538 Prosecution Response Brief para 12 6 528 82 Case No IT-98-29-A 30 November 2006 sum the Prosecution submits that Galić’s contention that the Trial Chamber did not properly consider the issue of collateral damage cannot be sustained 539 189 The Appeals Chamber notes that Galić did not refer to any specific finding of the Trial Judgement to support his argument and as a result did not meet his obligation to clearly set out his ground of appeal The Appeals Chamber will therefore not engage in an assessment of each scheduled incident but will rather assess whether the Trial Chamber correctly understood its obligations in assessing the legality of the attacks and the evidence in respect thereof A Assessment of the legality of the attacks 190 One of the fundamental principles of international humanitarian law is that civilians and civilian objects shall be spared as much as possible from the effects of hostilities This principle stems from the principles of distinction and the principle of protection of the civilian population “the cardinal principles contained in the text constituting the fabric of humanitarian law” constituting “intransgressible principles of international customary law” 540 According to the principle of distinction warring parties must at all times distinguish between the civilian population and combatants between civilian and military objectives and accordingly direct attacks only against military objectives 541 These principles establish an absolute prohibition on the targeting of civilians in customary international law542 but do not exclude the possibility of legitimate civilian casualties incidental to the conduct of military operations However those casualties must not be disproportionate to the concrete and direct military advantage anticipated before the attack the principle of proportionality 191 In Part II of the Trial Judgement Applicable Law the Trial Chamber considered that Article 51 2 of Additional Protocol I “states in a clear language that civilians and the civilian population as such should not be the object of attack” that this principle “does not mention any exceptions” and in particular that it “does not contemplate derogating from this rule by invoking military necessity ”543 It then held that Article 51 2 “explicitly confirms the customary rule that civilians must enjoy general protection against the danger arising from hostilities” and “stems from a fundamental principle of international humanitarian law the principle of distinction which obliges warring parties to distinguish at all times between the civilian population and combatants 539 Prosecution Response Brief para 12 6 Nuclear Weapons Case para 78 cited in Kordić and Čerkez Appeal Judgement para 54 541 Kordić and Čerkez Appeal Judgement para 54 542 Blaškić Appeal Judgement para 109 543 Trial Judgement para 44 540 83 Case No IT-98-29-A 30 November 2006 and between civilian objects and military objectives and accordingly to direct their operations only against military objectives” 544 The Trial Chamber also considered that o nce the military character of a target has been ascertained commanders must consider whether striking this target is “expected to cause incidental loss of life injury to civilians damage to civilian objectives or a combination thereof which would be excessive in relation to the concrete and direct military advantage anticipated ”545 192 The Appeals Chamber is satisfied that the Trial Chamber correctly assessed the legality of the incidents B Assessment of evidence in relation to those attacks 193 The Trial Chamber clearly explained the methodology it used to assess the legality of the attacks for the scheduled incidents and more generally It held T he Trial Chamber gave particular attention to questions of distance between the victim and the most probable source of fire distance between the location where the victim was hit and the confrontation line combat activity going on at the time and the location of the incident as well as relevant nearby presence of military activities or facilities appearance of the victim as to age gender clothing the activity the victim could appear to be engaged in visibility of the victim due to weather unobstructed line of sight or daylight The Trial Chamber was hence in a position to assess in each case in accordance with the law set out in Part II of this Judgement and in fairness to the Accused whether a scheduled incident is beyond reasonable doubt representative of the alleged campaign of sniping and shelling or whether it is reasonable to believe that the victim was hit by ABiH forces by a stray bullet or taken for a combatant 546 The Appeals Chamber finds that the approach of the Trial Chamber is indeed in accordance with its enunciation of the applicable law Galić does not point to any specific finding of the Trial Chamber in which it departed from a correct application of the law applicable to the assessment of the legality of the attacks To the contrary for example the Trial Chamber determined with regard to the attacks at Grbavica that there was no military activity in the vicinity 547 For Scheduled Sniping Incident number 24 the attack of a tram near the Holiday Inn Hotel the Trial Chamber determined that the tram “could not have been confused for a military objective” 548 and that there was neither 544 Trial Judgement para 45 Trial Judgement para 58 citing Article 51 5 b of Additional Protocol I footnote omitted 546 Trial Judgement para 188 547 Trial Judgement paras 230-231 548 Trial Judgement para 255 545 84 Case No IT-98-29-A 30 November 2006 military activity nor military objectives in the area 549 it thus concluded that “a civilian vehicle was deliberately targeted from SRK-controlled territory” 550 194 With regard to Galić’s arguments that the Trial Chamber ignored the issue of “dual use” objects the Appeals Chamber notes that for the attack on the front-end loader collecting garbage on Brace Ribara Street Scheduled Sniping Incident 15 for example the Trial Chamber considered the arguments of the Defence that this vehicle could have been used for a military purpose but rejected them based on the circumstances of the incident 551 With respect to Galić’s argument that the Trial Chamber failed to assess the possibility of artillery errors the principles of protection distinction and proportionality apply and Galić does not point to any part of the Trial Judgement in which the Trial Chamber erred in applying those principles With regard to his argument that the question of the use of civilians as “human shields” was not considered by the Trial Chamber the Appeals Chamber underlines that the Trial Chamber noted the following As suggested by the Defence the parties to a conflict are under an obligation to remove civilians to the maximum extent feasible from the vicinity of military objectives and to avoid locating military objectives within or near densely populated areas but the failure of a party to abide by this obligation does not relieve the attacking side of its duty to abide by the principles of distinction and proportionality when launching an attack 552 Galić’s argument is therefore without merit With regard to his arguments pertaining to the alleged failure of the Trial Chamber to define the confrontation line and its depth the Appeals Chamber notes that those arguments are merely repetitive of those made in his fourteenth ground of appeal and will accordingly be dealt with under that ground 195 For the foregoing reasons Galić’s twelfth ground of appeal is dismissed 549 Trial Judgement para 256 Trial Judgement para 258 551 Trial Judgement para 274 552 Trial Judgement para 61 550 85 Case No IT-98-29-A 30 November 2006 XIII GROUND 14 DEFINITION OF TERMS 196 Under his fourteenth ground of appeal Gali asserts that the Trial Chamber’s definitions of the terms “campaign” 553 “sniping” 554 and “civilians”555 are “erroneous” He complains that the Trial Chamber did not determine where legitimate military targets were situated in Sarajevo and “ w hat is considered a civilian area in a large city and what a military area”556 Galić argues that the Trial Chamber failed to engage in defining the terms “at a distance” 557 “shelling”558 and “protest”559 Moreover Galić contends that the Trial Chamber erred by failing to explicitly define the length and depth of the confrontation line 560 He further asserts that the “Prosecution has failed to prove that ₣…ğ any special sniper units were either organized and or located along the entire front line” 561 The Prosecution responds that the Trial Chamber was not obliged to adopt the definitions proposed by Galić and that the definitions it adopted do not in any way prejudice him 562 The Prosecution further asserts that Galić never “explain s how the Judgement is affected by”563 the Trial Chamber’s failure to define terms 197 The Appeals Chamber understands Galić to challenge 1 the failure of the Trial Chamber to define certain terms and 2 the definition of certain terms provided by the Trial Chamber As to these arguments the Appeals Chamber sees no legal error in the Trial Chamber’s findings Galić has failed to meet his burden on appeal to demonstrate an error on the part of the Trial Chamber that invalidates the decision He does not explain why a specific definition is required or how the Trial Chamber erred by not providing a definition Moreover he fails to explain how these alleged errors would have changed the outcome of the Trial Judgement 198 The Appeals Chamber further finds that the Trial Chamber did not err in failing to examine the location of additional legitimate military targets and in not determining the depth of the confrontation line at any specific point around the city Galić does not explain how identifying other legitimate targets would undermine the Trial Chamber’s conclusion – based on scheduled incidents 553 According to Gali the word campaign should be defined in the military sense as “to wage war” See Defence Appeal Brief para 166 fn 106 The arguments he proffers however only outline those he makes under his fifteenth ground of appeal and will accordingly be dealt with below 554 According to Gali the word sniping should be defined as an action from a weapon equipped with an optical sight See Defence Appeal Brief para 168 555 Defence Appeal Brief para 186 556 Defence Appeal Brief para 191 557 Defence Appeal Brief para 169 558 Defence Appeal Brief para 176 Galić merely uses the same arguments as those he proffers under his eighteenth ground of appeal and they will accordingly be dealt with below 559 Defence Appeal Brief para 183 The arguments Galić proffers outline those he makes under his eighteenth ground of appeal and will accordingly be dealt with below 560 Defence Appeal Brief para 193 561 Defence Appeal Brief para 174 see also AT 97-98 562 Prosecution Response Brief para 14 2 86 Case No IT-98-29-A 30 November 2006 and other evidence including evidence of statements made by SRK officers – that the SRK conducted a campaign of sniping and shelling not aimed at legitimate objectives He also neglects to point to specific findings where the Trial Chamber’s failure to define the terms “campaign” “sniping” and “civilians” led to error nor does he show how this omission led to an incorrect finding about the intended target of a shell or bullet 199 With regard to Galić’s argument that the Trial Chamber lacked evidence of SRK sniper units along the front line the Appeals Chamber notes that there are numerous examples in the Trial Judgement of evidence pointing to such units 564 200 563 564 For the foregoing reasons Gali ’s fourteenth ground of appeal is dismissed Prosecution Response Brief para 14 11 Trial Judgement paras 236-240 87 Case No IT-98-29-A 30 November 2006 XIV GROUND 15 ALLEGED ERRORS OF LAW AND FACT REGARDING THE EXISTENCE OF A CAMPAIGN 201 Under his fifteenth ground of appeal Galić challenges the Trial Chamber’s approach to the evaluation of evidence particularly in relation to the finding of a campaign of attacks against civilians arguing that it is contradictory and erroneous 565 and challenges specific findings of fact “for every scheduled incident” 566 A Background on the Trial Chamber’s findings regarding the existence of a campaign 202 The Indictment charged Galić with individual criminal responsibility pursuant to Article 7 1 of the Statute for “planning instigating ordering committing or otherwise aiding and abetting in the planning preparation or execution of the campaign of shelling and sniping against the civilian population of Sarajevo and the acts set forth” in two Schedules annexed to the Indictment “Schedules” 567 As such Galić was indicted for both specific incidents of shelling and sniping against civilians and for a campaign of shelling and sniping against civilians and the trial proceeded on that understanding 568 203 In order to make findings on both the scheduled incidents and the campaign the Trial Chamber first considered evidence related to the scheduled incidents and made factual determinations beyond a reasonable doubt regarding their criminality and Galić’s responsibility The Appeals Chamber has previously found this systematic approach of making factual findings in relation to each incident contained in the schedules and underlying the crimes contained in the Indictment to be an appropriate approach 569 In this way the Trial Chamber ensured that Galić knew that he had been found guilty of a crime in respect of the alleged scheduled incidents in accordance with his right to a fair trial 204 To reach a finding on the alleged campaign the Trial Chamber deduced the definition of the term “campaign” from the Indictment and determined that in the context of the Indictment the term covered military actions in the area of Sarajevo during the Indictment period involving widespread and systematic shelling and sniping of civilians resulting in their death or injury 570 For 565 Defence Appeal Brief paras 195-196 Defence Appeal Brief para 195 567 Indictment para 10 emphasis added 568 Trial Judgement paras 181-189 569 See Kvočka et al Appeal Judgement para 73 570 Trial Judgement para 181 566 88 Case No IT-98-29-A 30 November 2006 the purposes of specificity of the Indictment however the Trial Chamber considered that the scheduled incidents “were representative of a campaign” 571 205 The Trial Chamber considered that even if all scheduled incidents were proved they would not amount to a campaign in the absence of further evidence as the scheduled incidents did not establish a “‘widespread’ or ‘systematic’ manifestation of sniping and shelling of civilians” 572 The Trial Chamber considered that the scheduled incidents were “representative of a campaign”573 but decided to examine evidence of unscheduled incidents and evidence regarding the general situation in Sarajevo in order to establish a pattern of conduct that equated with the alleged campaign 574 After doing so the Trial Chamber made no findings on Galić’s criminality with respect to specific unscheduled incidents but relied inter alia on evidence regarding those incidents to support factual findings on the campaign B Alleged error in the evaluation of evidence 1 Arguments of the Parties 206 Galić alleges legal errors in the Trial Chamber’s approach to finding the existence of a campaign He argues that the Trial Chamber could only properly find the existence of a campaign by establishing individual criminal responsibility for a sufficient number of incidents proved beyond a reasonable doubt 575 The Appeals Chamber understands Galić to make four claims related to the Trial Chamber’s approach to proof of a campaign 207 First Galić asserts that “the scheduled incidents cannot serve as confirmation of the overall state of facts in Sarajevo”576 because in part “the failure to prove so few incidents could only mean … that there was no campaign” 577 He submits that the trial “must be conducted solely on the basis of established facts and never on the basis of allegations of a general nature about certain incidents” 578 He argues that the Trial Chamber erred by inferring the existence of a campaign from 571 Trial Judgement para 208 Trial Judgement para 208 573 Trial Judgement para 208 574 Prosecutor v Stanislav Galić Case No IT-98-29-PT Decision on the Defence Motion for Indicating that the First and Second Schedule to the Indictment Dated 10th October 2001 Should be Considered as the Amended Indictment 19 October 2001 “Trial Decision on Indictment Schedules” para 23 575 Defence Appeal Brief paras 196-199 576 Defence Appeal Brief para 206 577 Defence Reply Brief para 119 578 Defence Appeal Brief para 204 572 89 Case No IT-98-29-A 30 November 2006 events that were not each separately proved beyond a reasonable doubt to constitute criminal conduct 579 208 Second Galić argues that the only conclusion that can be made from the scheduled incidents regarding the general situation is that no campaign existed 580 In support of his argument he claims that only one-third of the twenty-seven scheduled sniping incidents were proved beyond a reasonable doubt by a unanimous Trial Chamber and that as a result only these incidents could be used to draw conclusions on the existence of a campaign 581 209 Third Galić contends that the Trial Chamber failed to give sufficient weight to evidence that supposedly negates other evidence relied upon by the Trial Chamber through application of the principle of in dubio pro reo 582 He points to the following • “orders given not to open fire on civilians” 583 • “the fact that the vast majority of the victims were men and soldiers” 584 and that according to the Prosecution the “ratio of the civilian victims deaths compared with the military ones is of more than 750%” 585 • “if there were a campaign one would have expected from ‘an army characterized by the level of competence and professionalism ascribed to the SRK’ that a significantly higher number of victims would have been caused during this allegedly uninterrupted campaign” 586 • “the fact that the main destructions occurred on the confrontation line ” 587 • “the fact … that even if the Serbian Ne ari i was nearly razed to the ground … no Muslim settlement was ever destroyed to that extent” 588 • “the fact that the Serbs wanted a demilitarisation of Sarajevo which was refused by the other belligerent party” 589 579 Defence Appeal Brief paras 197 204 Defence Reply Brief paras 123-126 581 Defence Reply Brief paras 123-124 582 Defence Reply Brief para 126 583 Defence Reply Brief para 126 584 Defence Reply Brief para 126 see also Defence Appeal Brief paras 211 217 585 Defence Appeal Brief para 217 586 Defence Reply Brief para 126 587 Defence Reply Brief para 126 588 Defence Reply Brief para 126 580 90 Case No IT-98-29-A 30 November 2006 • “the fact that the Serbs wilfully and freely handed over the airport to the UN forces in order to make the humanitarian assistance possible … throughout the Indictment Period” 590 • “the fact that he himself implemented the total exclusion zone ” 591 • “the fact that the number of victims dropped significantly under his command ” 592 • “the fact that he tried to implement blue roads for the safety of the local population” 593 • “the fact that the SRK did not open fire on the civilians used by the ABiH as human shields for the construction of military works” 594 210 Fourth Galić states that “no other incidents were discussed before the Trial Chamber in a manner guaranteeing the rights of the Accused and which would have led the Trial Chamber to a correct appraisal of evidence” 595 He claims that the Trial Chamber adopted “an erroneous and legally untenable stand that the scheduled incidents confirm the general situation in Sarajevo”596 and that “ c onclusions can not be drawn on the basis of a small number of examples leading to the finding of illegitimate conducts and actions ”597 His argument is that the Trial Chamber erred by relying on its findings regarding the scheduled incidents to make findings of fact about the general situation in Sarajevo including the existence of the campaign 211 In response to his first and second arguments that a campaign could only be established by proving a sufficient number of incidents beyond a reasonable doubt the Prosecution claims that Galić fails to acknowledge that the Trial Chamber in fact relied on a “voluminous” crime base made up of scheduled incidents unscheduled incidents and evidence of the general situation in Sarajevo 598 It argues that the Trial Chamber relied upon “the totality of this evidence” to draw its conclusion 599 212 Further the Prosecution argues that Galić has failed to demonstrate that the Trial Chamber’s approach was unreasonable and points out that the same argument was raised in his eleventh 589 Defence Reply Brief para 126 Defence Reply Brief para 126 591 Defence Reply Brief para 126 592 Defence Reply Brief para 126 593 Defence Reply Brief para 126 594 Defence Reply Brief para 126 595 Defence Appeal Brief para 206 596 Defence Appeal Brief para 205 597 Defence Appeal Brief para 205 598 Prosecution Response Brief para 15 10 599 Prosecution Response Brief para 15 10 590 91 Case No IT-98-29-A 30 November 2006 ground of appeal 600 Incorporating arguments from its response to his eleventh ground 601 the Prosecution argues that the Trial Chamber did not arrive at factual conclusions by first accepting evidence of generalisations and subsequently making determinations regarding particular incidents 602 Rather the Trial Chamber found that the Schedules served the procedural requirement of giving proper notice to Galić recognised that the Schedules “should not be understood as reducing the Prosecution’s case to the scheduled incidents” 603 and “considered the evidence of the scheduled incidents alongside more general evidence and evidence of unscheduled incidents” 604 Without discussing how or providing precise citations the Prosecution suggests that the approaches taken in the post-World War II Belsen Trial and Dachau Trial are similar to the present case 605 213 The Prosecution argues that the Trial Chamber considered the scheduled incidents “within a more general evidentiary context reflecting how the great number of witnesses in the case understood and explained them” 606 It also says that it provided particulars of the evidence regarding unscheduled incidents in Rule 65ter summaries before the evidence was adduced at trial 607 It claims that the Trial Chamber’s approach was entirely consistent with the use of evidence of unscheduled incidents as evidence corroborating a consistent pattern of conduct 608 As such evidence of unscheduled incidents and of the general situation in Sarajevo was used as both evidence of context and to corroborate a consistent pattern of conduct 609 214 In response to the list of evidence that Galić argues the Trial Chamber insufficiently considered the Prosecution submits the following • Regarding orders allegedly given by Galić not to target civilians “ t here was no evidence that there were intercepts available to the Prosecution of any orders or other oral communication … given within the SRK in the indictment period” 610 • Regarding the claim that the main destruction occurred along the confrontation line the Trial Chamber noted that the “Defence repeatedly proposed to witnesses who served the UN 600 Prosecution Response Brief para 15 2 relying on the Prosecution’s response to Galić’s eleventh ground of appeal See Defence Appeal Brief paras 117-118 challenging the Trial Chamber’s alleged method of fact finding “from the general to the particular” and not from “the particular to the general” ibid paras 124-126 challenging the Trial Chamber’s ability to support findings of fact with evidence from unproved unscheduled incidents 601 Prosecution Response Brief para 15 2 602 Prosecution Response Brief para 11 4 603 Prosecution Response Brief para 15 3 quoting Trial Judgement para 188 604 Prosecution Response Brief para 11 4 605 Prosecution Response Brief para 15 10 606 Prosecution Response Brief para 15 6 quoting Trial Judgement para 189 607 See Prosecution Response Brief para 15 5 608 Prosecution Response Brief para 15 6 609 Prosecution Response Brief para 15 7 610 Prosecution Response Brief para 15 19 92 Case No IT-98-29-A 30 November 2006 in Sarajevo that the physical damage was greater on the front line than in the city implying that the casualties inflicted in the city were unintentional The Trial Record shows however that there was more shelling going into the city and that civilians and the civilian population as such in ABiH-held areas of Sarajevo were targeted from SRK controlled territory” 611 • The ratio of civilian deaths to military deaths during the Indictment period is not 750% as stated by Galić Rather according to the Prosecution expert witness Ewa Tabeau during that period 3 798 persons were killed of whom 1 399 were civilians equalling a ratio of civilian to military fatalities of 36 8% and of military to civilian fatalities of 171% 612 • The handover of Sarajevo airport happened prior to Galić’s command “therefore he is in no position to take credit for that decision” and the Trial Chamber found that “the episodes of indiscriminate firing against people crossing the runway relevant to establishing that indiscriminate fire against civilians by SRK forces was an accepted and known fact” 613 • Regarding the alleged decline in civilian casualties during Galić’s command the Trial Chamber considered that the average number of civilian casualties fell during that period 614 The Trial Chamber noted that this was in part the result of measures “taken to minimise the exposure of civilians to the sniping and shelling such as the erection of anti-sniping barricades the development of alternative and safer pedestrian routes shifting the distribution points of humanitarian aid closing and moving schools and the holding of funerals at night” 615 Nonetheless the Trial Chamber found that civilians remained unsafe 616 Additionally the low monthly figure for 1994 reflects a dramatic cessation in attacks for at least several weeks after the Markale market incident of 5 February 1994 617 • Regarding the “blue roads” claimed to have been supported by Galić some routes for civilian travel were established after the Markale market incident but “targeting of civilians continued during this phase” 618 215 In response to Galić’s fourth argument the Prosecution points to the Trial Chamber’s explanation that “evidence which demonstrates whether the alleged scheduled incidents if proved 611 Prosecution Response Brief para 15 46 quoting Trial Judgement para 209 Prosecution Response Brief para 15 34 613 Prosecution Response Brief para 15 27 quoting Trial Judgement para 416 614 Prosecution Response Brief para 15 21 615 Prosecution Response Brief para 15 22 616 Prosecution Response Brief para 15 22 617 Prosecution Response Brief para 15 23 618 Prosecution Response Brief para 15 26 612 93 Case No IT-98-29-A 30 November 2006 attacks were not isolated incidents but representative of a campaign of sniping and shelling as alleged by the Prosecution is examined with no less due attention” 619 2 Discussion a Alleged failure to prove the material facts of a campaign beyond a reasonable doubt 216 Galić contends that the Trial Chamber failed to properly establish the crime underlying the charges of criminal responsibility for a campaign He takes issue with the Trial Chamber’s use of general evidence about the situation in Sarajevo and evidence regarding unscheduled incidents of sniping and shelling in combination with evidence of the scheduled incidents He argues that the Trial Chamber erred by failing to establish beyond a reasonable doubt a sufficient number of incidents to constitute a campaign and thus had an insufficient factual basis for finding beyond a reasonable doubt that he was criminally responsible for the campaign 620 217 The Trial Chamber’s approach to finding the existence of a campaign however is well- grounded in the International Tribunal’s jurisprudence and practice First the Trial Chamber located in the Indictment the elements of the offence of a campaign of shelling and sniping attacks against civilians The Trial Chamber determined those elements to be the widespread or systematic shelling and sniping of civilians resulting in their death or injury 621 Next the Trial Chamber examined voluminous evidence presented at trial by the Prosecution in an attempt to prove the elements of the offence 622 The Trial Chamber permissibly considered direct and circumstantial evidence going towards proving the material facts Finally the Trial Chamber made permissible findings on the material facts and then concluded that the only reasonable explanation was that there was a campaign to attack civilians 623 218 Galić appears to be particularly troubled by the Trial Chamber’s reliance on direct and indirect evidence regarding unscheduled incidents which it then used as circumstantial evidence going to prove the existence of a campaign But there is nothing intrinsically erroneous about a criminal case being established through proof by circumstantial evidence 624 and it is well grounded 619 Prosecution Response Brief para 15 9 quoting Trial Judgement para 208 Defence Appeal Brief paras 196-199 621 Trial Judgement para 181 622 See infra para 221 623 Trial Judgement paras 582-594 624 Kupreškić et al Appeal Judgement para 303 “The Appeals Chamber first notes that there is nothing to prevent a conviction being based upon circumstantial evidence Circumstantial evidence can often be sufficient to satisfy a fact finder beyond reasonable doubt ” See also Stakić Appeal Judgement para 219 620 94 Case No IT-98-29-A 30 November 2006 in the International Tribunal’s practice 625 A circumstantial case consists of “evidence of a number of different circumstances which taken in combination point to the guilt of the accused person because they would usually exist in combination only because the accused did what is alleged against him” 626 Contrary to Galić’s suggestion that the trial should be “conducted solely on the basis of established facts” 627 each piece of circumstantial evidence need not be nor rarely is proved beyond a reasonable doubt since that would involve trials within trials ad infinitum Instead the accused’s rights are protected by requiring that findings at trial based on circumstantial evidence must be the only reasonable conclusions available from that evidence 628 If there is another conclusion which is also reasonably open from the circumstantial evidence and which is consistent with the innocence of the accused he must be acquitted 629 219 This approach has been supported by the Appeals Chamber A three-judge bench of the Appeals Chamber affirmed that the scheduled incidents served the procedural requirement of proper notice of a campaign 630 The Trial Chamber proposed that evidence regarding additional unscheduled incidents could be introduced at trial pursuant to Rule 93 of the Rules in order to prove a consistent pattern of conduct relevant to the charges in the Indictment including a campaign 631 Use of this type of evidence has been endorsed by the Appeals Chamber in other cases 632 In sum the Trial Chamber properly used evidence regarding unscheduled incidents and the general situation in Sarajevo to support conclusions on the existence of a pattern of conduct the campaign of shelling and sniping attacks against civilians b Alleged error in consideration of evidence 220 Galić provides a list of evidence to be considered in light of the maxim in dubio pro reo which he describes as “facts” that should have been considered by the Trial Chamber to introduce reasonable doubt as to the existence of a campaign This evidence is listed in the Defence Appeal Brief and Defence Reply Brief without further argument as to how the Trial Chamber may have accorded it insufficient weight As stated earlier in this Judgement the Appeals Chamber gives a 625 See e g Kordi and Čerkez Appeal Judgement para 276 circumstantial evidence can be corroborative Blaškić Appeal Judgement para 56 leaving intact the Trial Chamber’s use of circumstantial evidence to establish superior knowledge Krstić Appeal Judgement para 83 approving trial approach based on circumstantial evidence 626 Čelebići Appeal Judgement para 458 627 Defence Appeal Brief para 204 628 Stakić Appeal Judgement para 219 Čelebići Appeal Judgement para 458 629 Stakić Appeal Judgement para 219 Čelebići Appeal Judgement para 458 630 Prosecutor v Stanislav Gali Case No IT-98-29-AR72 Decision on Application by Defence for Leave to Appeal 30 November 2001 “Appeal Decision on Indictment Schedules” para 16 631 Galić Trial Decision on Indictment Schedules para 23 632 See e g Kvočka et al Appeal Judgement para 71 Kupreškić et al Appeal Judgement para 321 comparing Rule 93 evidence with similar fact evidence in common law legal systems 95 Case No IT-98-29-A 30 November 2006 broad margin of deference to findings of fact reached by a Trial Chamber 633 The Appeals Chamber can see no reason why it should simply substitute evidence preferred by Galić for that accepted by the Trial Chamber Galić was required to demonstrate that the Trial Chamber returned a conviction on the basis of evidence that could not have been accepted by any reasonable tribunal or where the evaluation of the evidence was wholly erroneous 634 Since he has not made this argument this part of his ground of appeal is dismissed c Alleged error in drawing conclusions on the existence of a campaign from scheduled incidents 221 Galić does not point to any specific findings of fact reached in error by the Trial Chamber but alleges error in its ultimate finding of the existence of the campaign The Appeals Chamber is satisfied that in finding Galić criminally responsible for the campaign the Trial Chamber considered a large body of evidence which formed a sufficient basis for the Trial Chamber to reach a factual finding on the existence of the alleged campaign 635 222 In examining the situation in Sarajevo the Trial Chamber made clear that its findings were not based solely on the evidence adduced relating to the scheduled incidents 636 It noted that the scheduled incidents served the purpose of providing specificity of pleading so that Galić was notified of the nature of the case he had to meet 637 and thus in the context of the Indictment the scheduled incidents were “representative” of the campaign 638 633 Kupreškić et al Appeal Judgement para 30 Stakić Appeal Judgement para 219 Kupreškić et al Appeal Judgement para 41 635 See Trial Judgement paras 210-225 general evidence of sniping and shelling civilians in urban ABiH-held areas of Sarajevo ibid paras 226-246 evidence of sniping and shelling civilians in general Grbavica area ibid paras 259266 evidence of sniping and shelling civilians in Hrasno area ibid para 290 evidence of sniping and shelling civilians in Alipašino Polje area ibid paras 291-297 evidence of sniping and shelling civilians from Neđarići and the School for the Blind ibid paras 347-351 evidence of sniping and shelling civilians from the Orthodox Church and School of Theology ibid paras 368-371 evidence of shelling civilians in Dobrinja area ibid paras 411-416 evidence regarding the situation at Sarajevo airport ibid paras 417-420 evidence of sniping and shelling civilians in Briješko Brdo area ibid paras 434-437 evidence of indiscriminate shelling in Stari Grad ibid para 510 evidence of sniping and shelling civilians in Sedrenik area ibid paras 511-514 524-526 evidence of sniping and shelling civilians from Špicasta Stijena ibid paras 527-531 evidence of sniping and shelling civilians in the Širokača area ibid paras 544-546 evidence of sniping and shelling civilians in the Vogošća area ibid paras 558-560 evidence of sniping and shelling civilians in Kobilja Glava ibid paras 561-563 evidence about the pattern of fire into ABiH-held territory ibid paras 578-581 evidence regarding the number of civilians killed in Sarajevo during the Indictment period 636 Trial Judgement para 188 stating that the Schedules “should not be understood as reducing the Prosecution’s case to the scheduled incidents and the trial was not conducted on that understanding” 637 Trial Decision on Indictment Schedules paras 3 15-17 noting that the Indictment charged a campaign holding that as part of the Prosecution’s obligation to plead the material facts of the charges in the Indictment “the Prosecution was bound to provide details about some of the sniping and shelling incidents in the Indictment but it was under no obligation to list all of the specific incidents” See also Appeal Decision on Indictment Schedules para 16 finding that it was unnecessary to plead as material facts all the details in the schedules but that the schedules served the purpose of providing “specificity of pleading” and thus adequate notice to Galić of the nature of the case he had to meet 638 Trial Judgement paras 188-189 see Indictment para 15 634 96 Case No IT-98-29-A 30 November 2006 223 Although some confusion may result from the Trial Chamber’s phrasing that it was determining whether incidents “exemplif ied the overall situation in Sarajevo”639 were “representative of”640 or “exemplary of”641 the campaign a review of the Trial Judgement clearly indicates that the Trial Chamber’s approach is better understood as an assessment of whether the incidents were part of the campaign Because Galić fails to point to any specific findings that were insufficiently supported by corroborating evidence and the Trial Judgement is replete with factual findings based on a substantial volume of corroborating evidence the Appeals Chamber declines to engage in an exhaustive undirected review of the Trial Judgement 3 Conclusion 224 The Appeals Chamber finds no error in the Trial Chamber’s approach to finding the existence of a campaign First the Appeals Chamber accepts the Trial Chamber’s definition of “campaign” 642 and the elements of the offence Second the Appeals Chamber finds no error in the Trial Chamber’s holding that the scheduled incidents proved at trial do not in themselves constitute a campaign as it is understood in the context of the Indictment 643 but that the proof of a campaign could be established by adducing a large body of additional direct and indirect evidence to build a circumstantial case regarding the campaign C Alleged error of law 225 Galić disputes the Trial Chamber’s conclusions on 12 of the 23 scheduled sniping incidents and three of the five shelling incidents arguing that they could not have been proved beyond a reasonable doubt when the dissent expresses such reasonable doubt 644 The Prosecution does not respond to this argument 226 The Appeals Chamber understands Galić to argue that the Trial Chamber could not have been satisfied of his guilt beyond reasonable doubt because one of its Judges was not himself satisfied of Galić’s guilt beyond reasonable doubt However the presence of a dissenting opinion on questions of fact does not negate the validity of a trial judgement since verdicts at trial need only to be reached by a majority of the Trial Chamber 645 639 Trial Judgement para 188 See e g Trial Judgement paras 416 420 437 514 557 558 641 See e g Trial Judgement paras 302 309 and 327 642 See Trial Judgement para 181 643 See Trial Judgement para 208 644 Defence Appeal Brief paras 214 215 645 Rule 98ter C of the Rules stating in relevant part that “ t he judgement shall be rendered by a majority of the Judges” 640 97 Case No IT-98-29-A 30 November 2006 227 By merely pointing to the existence of a dissenting opinion Galić fails to meet his burden on appeal because he has not demonstrated the unreasonableness of the majority’s assessment of the evidence Consequently the Appeals Chamber dismisses this part of Galić’s ground of appeal D Alleged errors of fact 228 In the remainder of his fifteenth ground of appeal Galić submits numerous allegations of factual error in the Trial Judgement His submissions are summarised and discussed below However for the most part they consist of bare assertions that are dismissed without substantial reasoning as they do not meet the requirements for appeal 646 1 Alleged failure to prove the “widespread” nature of the attacks 229 Galić states that the Prosecution “failed to prove that the incidents were widespread” 647 He argues that the “ u nscheduled incidents which were only mentioned have not been proved and cannot serve as confirmation of the existence of a ‘widespread’ campaign” 648 He also separately states that the Prosecution failed to prove the existence of a plan 649 The Prosecution does not respond to this argument 230 The Trial Chamber considered a campaign to be “military actions in the area of Sarajevo during the Indictment period involving widespread or systematic shelling and sniping of civilians resulting in their death or injury” 650 Accordingly the widespread or systematic nature of the military actions constitutes an element of the campaign This element could not be proved by the scheduled incidents alone because as the Trial Chamber noted the 24 scheduled sniping and five scheduled shelling incidents spread out over two years could not “represent a convincing widespread or systematic manifestation of sniping and shelling of civilians” 651 As noted above the Trial Chamber therefore examined additional evidence regarding unscheduled incidents and general evidence regarding the situation in Sarajevo in order to determine whether together these incidents amounted to a campaign 652 231 In this part of his ground of appeal Galić reiterates his previous argument that the Trial Chamber erred by finding the existence of a campaign partly on the basis of evidence regarding the unscheduled incidents Here the argument is simply that the Trial Chamber erred by finding an 646 Naletilić and Martinović Appeal Judgement paras 176 181 282 327 and 511 Defence Appeal Brief para 200 648 Defence Appeal Brief para 200 649 Defence Appeal Brief para 215 650 Trial Judgement para 181 emphasis added 651 Trial Judgement para 208 652 Trial Judgement para 208 647 98 Case No IT-98-29-A 30 November 2006 element of a campaign the widespread nature of attacks partly on the basis of that evidence As discussed above the Appeals Chamber finds no error in the Trial Chamber’s approach to proving the existence of a campaign through the use of this evidence 653 Accordingly this part of Galić’s ground of appeal is dismissed 2 Alleged errors in the application of the principles of distinction and proportionality a Submissions of the Parties 232 Galić argues that the Trial Chamber erred by failing to consider several factors relevant to the determination that attacks resulting in civilian casualties violated the principles of distinction and proportionality He submits that “the Trial Chamber or the Majority should have paid … specific attention to the real difficulties of urban warfare ” which gave rise to the “pivotal issue of … collateral damage” 654 He further argues that before determining whether specific incidents constituted an indiscriminate shelling against civilians the Trial Chamber needed to determine the precise location of all ABiH military locations 655 and that the Trial Chamber failed to determine “whether an apparently indiscriminate or illicit shelling was linked or not to other events like the presence of mobile mortars troops the presence of other military or strategic objective s ” 656 233 Galić points to additional factors that he believes support his claim that the Trial Chamber erred in its application of the principles of distinction and proportionality • Galić claims there was “overabundant evidence according to which many ABiH military targets were spread all over Sarajevo” and that this fact was “never fairly considered” by the Trial Chamber 657 • Relatedly Galić claims that many witnesses were unaware of the location of ABiH military targets and therefore were incapable of testifying to the civilians targeted or indiscriminate nature of sniping and shelling incidents 658 • Galić refers to two maps “tendered into evidence” that establish the “presence of military – therefore legitimate – targets in Sarajevo” and the “so-called security zone or dangerradius” around those targets 659 653 See supra paras 217-224 Defence Appeal Brief para 207 655 Defence Appeal Brief para 240 656 Defence Appeal Brief para 227 657 Defence Reply Brief para 121 658 Defence Reply Brief para 121 654 99 Case No IT-98-29-A 30 November 2006 • Galić repeatedly points to the “situation of Bistrik – the Old Brewery – as a good example” of an incident that appeared to be civilian targeting but which he contends was a legitimate military target because “the ABiH had a repair and production workshop for their weapons in the complex” 660 He argues that “ b asically the same is true for the whole theatre of Sarajevo” 661 234 The Prosecution responds that it would not matter if the city was replete with military targets since it would not make them legitimate in all circumstances 662 Instead the Prosecution suggests that the Trial Chamber must examine the evidence of each specific incident whether scheduled or unscheduled in order to determine whether the principles of distinction and proportionality were respected It argues that Defence Witness Radinović preparer of the map of ABiH military targets in Sarajevo D1913 did not determine whether attacking the military targets on that map would have violated the principles of distinction or proportionality 663 The Prosecution further argues that map D1913 was demonstrated to be unreliable by comparing tendered source documents with numbered positions marked on the map The Prosecution provides a list of numbered positions it argues demonstrate error664 and render the map without “value in determining the issues of fact in the trial” 665 With regard to Galić’s arguments that the weapons used increased the likelihood of collateral damage because they were error-prone the Prosecution rebuts that this fails to “explain how such errors could be acceptable in the context of international humanitarian law when these problems are known in advance” 666 Further it contests the claim that error could account for the high frequency of civilian casualties particularly for incidents the Trial Chamber found to be a result of deliberate targeting 667 b Discussion 235 In this part of his ground of appeal Galić fails to specify which findings of the Trial Chamber he alleges to be in error Rather than challenging specific findings and demonstrating how the Trial Chamber’s failure to properly consider the principles of distinction and proportionality make its finding one that no reasonable trier of fact could make he essentially argues that these factors were “never really examined by the Trial Chamber” 668 In fact this 659 Defence Appeal Brief para 209 referring to D1913 prepared by Defence Witness Radinovi Defence Reply Brief para 121 661 Defence Reply Brief para 122 662 Prosecution Response Brief para 15 15 663 Prosecution Response Brief para 15 15 664 Prosecution Response Brief para 15 16 665 Prosecution Response Brief para 15 17 666 Prosecution Response Brief para 15 13 667 Prosecution Response Brief para 15 13 668 Defence Appeal Brief para 207 660 100 Case No IT-98-29-A 30 November 2006 statement is inaccurate For each of the scheduled incidents the Trial Chamber carefully considered whether the civilian victims were the unintended victims of combat and only reached a conclusion on the deliberateness of sniper targeting or the indiscriminate nature of shelling after determining that no reasonable possibility existed that the victims were mistaken for combatants or were unintentionally harmed by combat in their vicinity 236 The Appeals Chamber need not further examine the merits of Galić’s arguments regarding distinction and proportionality in detail in this ground of appeal because they fail to meet the abovementioned requirements on appeal and largely reiterate arguments made in his twelfth ground of appeal 3 Alleged failure to prove that Galić ordered a campaign of shelling and sniping against civilians a The Trial Chamber’s findings 237 The Trial Chamber found that Galić ordered the campaign of shelling and sniping against civilians 669 It based its conclusion on the following findings of fact • The pattern of shelling and sniping against civilians in Sarajevo670 revealed a “strikingly similar pattern” 671 the temporal and spatial pattern indicated it was ordered by the SRK chain of command672 and relayed down the chain of command 673 leading the Trial Chamber to conclude that the criminal acts were not solely the result of “sporadic acts of soldiers out of control” but constituted a “deliberate campaign of attacking civilians” 674 • Testimony related to the speed of implementation of cease-fire agreements that indicated to high-ranking UN personnel that the SRK command had “total and absolute control” over their subordinates 675 that the Bosnian Serb troops positioned around Sarajevo were under Galić’s command 676 that he had actual knowledge of their criminal conduct which he 669 Trial Judgement paras 733-753 Trial Judgement paras 733-734 671 Trial Judgement para 741 672 Trial Judgement paras 736-737 673 Trial Judgement para 738 674 Trial Judgement para 741 675 Trial Judgement para 734 citing testimony of General Michael Rose commander of UNPROFOR in BosniaHerzegovina from February 1993 to January 1994 and testimony of James Fraser an UNPROFOR representative in Sarajevo from April 1994 onwards 676 Trial Judgement para 742 670 101 Case No IT-98-29-A 30 November 2006 neither prevented nor punished 677 and that the “widespread and notorious attacks against the civilian population of Sarajevo could not have occurred without it being his will” 678 • Testimony that sniping of civilians increased when Serb military demands were not met indicated to the Trial Chamber that orders to resume or increase sniper fire were given 679 b Alleged failure to provide direct evidence of Galić’s orders 238 Galić claims that the Prosecution’s failure to produce direct evidence of orders to attack civilians demonstrates that none was given particularly in light of the volume of “intercepted communications” to which Galić claims the Prosecution had access 680 The Prosecution responds that there “was no evidence that there were intercepts available to the Prosecution of any orders or other oral communication … given within the SRK in the indictment period” 681 239 The Appeals Chamber notes that this argument was advanced at trial and the Trial Chamber determined that an order need not be in a particular form that evidence established that oral orders were issued on a daily basis by Galić or the SRK chain of command and ultimately that the Prosecution’s burden of proof was established by circumstantial evidence of his knowledge of the crimes committed by his forces the high degree of discipline he had over his subordinates and his failure to act upon his knowledge of the commission of crimes 682 240 The Appeals Chamber is not satisfied that no reasonable trier of fact could have reached the Trial Chamber’s conclusion and therefore dismisses the argument c Alleged response to protests 241 Galić claims that he responded to protests regarding civilian casualties that were “effectively delivered” to him and were shown to be caused by his Serb forces 683 242 The Appeals Chamber notes that the Trial Chamber determined that Galić was put on notice of the criminal activity of his subordinates by protests delivered to him by UN personnel684 and that he largely failed to respond 685 In the course of reaching this determination the Trial Chamber 677 Trial Judgement para 742 Trial Judgement para 742 679 Trial Judgement para 735 citing testimony of General Van Baal UNPROFOR Chief of Staff in BosniaHerzegovina in 1994 680 Defence Appeal Brief para 210 681 Prosecution Response Brief para 15 19 682 Trial Judgement paras 739-741 683 Defence Appeal Brief para 212 citing Witness Hamill T 6067 and Witness Magnusson T 8133-34 684 Trial Judgement paras 667-675 discussing protests delivered in person to Galić 685 Trial Judgement paras 676-684 discussing Galić’s response to protests delivered directly to him 678 102 Case No IT-98-29-A 30 November 2006 received “consistent evidence that a considerable number of knowledgeable United Nations’ representatives and other intermediaries” protested against indiscriminate firing on civilians to Galić directly 686 The Trial Chamber found that his response to these protests was “varied” 687 and considered the testimony from at least seven witnesses regarding his response to the protests in reaching its conclusion that he failed to prevent or punish the criminal conduct of his subordinates 688 243 The Appeals Chamber finds that Galić has failed to establish how the Trial Chamber erred in its reasoning and dismissses this part of his ground of appeal d Alleged evidence that Galić ordered subordinates not to target civilians 244 Galić points to the testimony of Witness AD an SRK section commander in a mortar unit posted on the so-called external ring of the confrontation lines stating that he was repeatedly ordered by his commander to target civilians 689 Galić points to several aspects of the testimony as exculpatory According to him the fact that Witness AD knew the orders were illegal and protested against them demonstrates that he was instructed or informed not to fire on civilians 690 Further the fact that Witness AD either did not execute the orders or did so in such a way that no civilian casualties resulted demonstrates that the instruction not to fire on civilians was not merely pro forma 691 He also claims that the fact that Witness AD was not punished for his failure to obey the order demonstrates that his commander did not report the incident up the chain of command because he knew he would be punished for giving the order 692 The Prosecution responds that the “powerful and direct” testimony of Witness AD demonstrated that his Brigade Commander directly ordered him to target civilians 693 and although Witness AD could not say that the orders emanated from Galić the Trial Chamber nonetheless found that evidence from Witness AD supported the conclusion that oral orders passing down through the SRK chain of command were not unusual 694 245 The Appeals Chamber finds that whereas Galić claims that his line of reasoning in this argument involves “simple factual deductions” 695 it in fact concerns interpretive inferences drawn from the witness testimony Although Galić may prefer his interpretation of the witness’s testimony 686 Trial Judgement para 667 see ibid paras 667-675 Trial Judgement para 676 688 See Trial Judgement paras 676-684 and 722 689 The Trial Chamber noted that “Witness AD an SRK soldier testified that the Commander of the Ilijas Brigade gave orders to his mortar battery to target ambulances a marketplace funeral processions and cemeteries further north from the city in Mrakovo ” Trial Judgement para 219 690 Defence Appeal Brief para 228 691 Defence Appeal Brief para 228 citing Trial Judgement para 717 692 Defence Appeal Brief para 228 693 Prosecution Response Brief para 15 132 694 Prosecution Response Brief para 15 133 citing Trial Judgement para 740 687 103 Case No IT-98-29-A 30 November 2006 to that of the Trial Chamber the Appeals Chamber will not lightly substitute his view for the Trial Chamber’s findings without a demonstration that no reasonable trier of fact could have reached the conclusion reached by the Trial Chamber Objections will be dismissed without detailed reasoning where an appellant unacceptably seeks to substitute his own evaluation of the evidence for that of the Trial Chamber 696 Accordingly this part of Galić’s ground of appeal is dismissed E Alleged errors in evaluation of witness testimony 246 In the remainder of Galić’s fifteenth ground of appeal he disputes the interpretations of the testimony of 14 witnesses arguing that the testimony of these witnesses was “simply misstated by the Trial Chamber” and therefore the “trial was not conducted in a fair and true manner” 697 Galić’s substantial submissions in this part of his fifteenth ground of appeal are almost entirely redundant with those advanced in his seventeenth ground of appeal Further they suffer from such substantial defects in form that their consideration on the merits is either impossible or not required Accordingly these arguments are dismissed without analysis because they fail to meet the formal requirements of an appeal and frequently merely propose to substitute Galić’s interpretation of testimony for the Trial Chamber’s Moreover these arguments were each advanced at trial and are dismissed here because Galić fails to demonstrate that rejecting them at trial constituted such error as to warrant the intervention of the Appeals Chamber 698 Accordingly this part of Galić’s ground of appeal is dismissed 247 For the foregoing reasons the Appeals Chamber dismisses Galić’s fifteenth ground of appeal 695 Defence Appeal Brief para 229 Vasiljevi Appeal Judgement para 12 Kunarac et al Appeal Judgement para 48 697 Defence Appeal Brief para 223 698 See Kordi and Čerkez Appeal Judgement para 21 696 104 Case No IT-98-29-A 30 November 2006 XV GROUND 17 ALLEGED ERRORS CONCERNING SNIPING AND SHELLING INCIDENTS 248 In his seventeenth ground of appeal Galić alleges various erroneous factual findings and evaluations of evidence with regard to the Trial Chamber’s findings related to the alleged campaign of sniping and shelling against the civilian inhabitants of Sarajevo 699 249 With two exceptions it would not be useful to go through this ground incident by incident as Galić did not present allegations that would lead the Appeals Chamber to consider reversing or revising the Trial Chamber’s findings The Appeals Chamber will demonstrate by looking at the allegations categorically why these allegations do not meet the test for overturning findings of fact However the Appeals Chamber will inquire separately into the Trial Chamber’s findings with regard to the attacks on the Markale Market700 and the Ko evo Hospital 701 250 Further a large number of Galić’s arguments on appeal especially in this ground have been made in the footnotes to the main text In light of the great length granted to Galić for his appeal 702 there is no reason why all substantive arguments could not have been expressed in the main text with the footnotes used for citation and clarification only The Appeals Chamber ruled in Prosecutor v Kordi and erkez that grounds of appeal must be dealt with in the main text not the footnotes 703 Therefore where a new argument is made in a footnote the Appeals Chamber will ordinarily not address that argument For similar reasons the Appeals Chamber will not look at the Defence Notice of Appeal or at Judge Nieto-Navia’s Dissent when Galić tries to incorporate arguments by reference to them the arguments should have been made in the appeal 251 Some of Galić’s allegations raised under this ground of appeal allege legal errors rather than factual errors In this section the Appeals Chamber will identify the alleged legal errors and indicate in which section of the Appeal Judgement they are addressed It will then investigate Galić’s allegations of factual error category by category describe each category in detail explain 699 See Defence Appeal Brief paras 252-483 See Trial Judgement paras 438-496 701 See Trial Judgement paras 497-509 702 See Prosecutor v Stanislav Gali Case No IT-98-29-A Decision on Defence’s Request for Reconsideration 16 July 2004 p 3 granting an extension of the allowable page limit from 100 to 145 pages Indeed based on a word count the appeal is twice as long as the standard Under the Practice Direction in force at the time Gali filed his appeal an appeal from a final judgement could not exceed 100 pages or 30 000 words whichever was greater See Practice Direction on the Lengths of Briefs and Motions IT 184 Rev 1 5 March 2002 para C 1 a The appeal is 69 516 words long Prosecutor v Stanislav Gali Case No IT-98-29-A Decision on “Urgent Prosecution Motion for an Order Requiring the Appellant to Re-File His Appeal Brief and Request for Leave to Exceed Word-Limit for Motion” 2 September 2004 p 2 703 See Prosecutor v Dario Kordić and Mario Čerkez Case No IT-95-14 2-A Order to File Amended Grounds of Appeal 18 February 2002 p 3 700 105 Case No IT-98-29-A 30 November 2006 what the Appeals Chamber’s responsibility is with regard to each type of allegation and address each type of allegation accordingly 252 The Appeals Chamber wishes to emphasise that it is not conducting a new trial The Appeals Chamber does not hear as many witnesses or consider as many exhibits as a Trial Chamber indeed it may consult very few Therefore it lacks the Trial Chamber's competence to decide most matters of fact The difference is especially acute in a case like this where evidence in the form of exhibits pictures video scientific tables and technical expertise have been so important Therefore the Appeals Chamber will only overturn factual findings of the Trial Chamber if the Appeals Chamber is convinced that no reasonable trier of fact having regard to all the evidence that was presented to it and that it should have considered could have come to the same conclusion A Preliminary issue 253 Galić alleges several errors of law in this ground of appeal As stated above these alleged errors are listed here but are in general more fully addressed in those parts of the Appeal Judgement dealing with errors of law 254 The allegations of legal errors include a The existence of fighting on both sides precludes the finding that Gali intended to target civilians or spread terror 704 b A shooter must have either actually known or been able to determine that the target was a civilian for a crime to have been committed 705 c Armies firing at an apartment block in a residential area “as soon as something moves” at night are not unlawfully targeting civilians 706 d The intent to target civilians cannot be proved based on inferences from circumstantial evidence 707 704 Defence Appeal Brief paras 258 316 See supra para 190 there is an absolute prohibition against targeting civilians regardless of the fact that there is fighting on both sides The fighting on both sides affects the determination of what is an unlawful attack and what is acceptable collateral damage but it does not affect the prohibition 705 Defence Appeal Brief paras 292 310 319 356 361 365 fn 234 In case of doubt whether a person is a civilian that person shall be considered to be a civilian Kordi and erkez Appeal Judgement para 48 706 Defence Appeal Brief para 306 Combatants have a duty to differentiate civilians from combatants where there is doubt potential targets must be considered civilians and must not be attacked Kordi and erkez Appeal Judgement para 48 Attacking anything that moves in a residential building before determining whether the mover is a civilian or a combatant is a paradigmatic example of not differentiating between targets 106 Case No IT-98-29-A 30 November 2006 e The crime of “terror against the civilian population” requires proof that each attack is undertaken for the purpose of spreading terror 708 f The crime of attack on civilians requires proof that the shooter intended to deliberately hit a particular civilian 709 Reckless disregard does not establish a crime 710 g The type of weapon used in a sniping incident is a necessary element of proof 711 h A civilian population living on the front lines or near strategic military objectives loses the protection accorded to civilians Incidents on the front line or close to military targets have no protection because activities near the front line even football matches are interpreted as military activities and the presence of soldiers near where a civilian has been hit indicates that the injury cannot be the product of a deliberate attack on civilians Further a strike on a civilian population located on the front line even if it is a line of civilians getting water from a well cannot be an example of a campaign against civilians 712 i The presence of civilians among victims does not imply that the targeted population is civilian 713 j A Trial Chamber errs in not considering the possibility of a reckless attack even if it finds evidence of a deliberate attack 714 707 Defence Appeal Brief para 260 See supra para 171 facts can be proven based on direct or circumstantial evidence a conviction can in principle be grounded on circumstantial evidence alone 708 Defence Appeal Brief para 261 See supra paras 107-108 the only reasonable conclusion is that the primary aim of the campaign of sniping and shelling as a whole was to instil terror 709 Defence Appeal Brief para 313 Article 51 of Additional Protocol I makes no requirement of the intent to attack particular civilians rather it prohibits making “ t he civilian population as such as well as individual civilians … the object of attack” Additional Protocol I art 51 2 emphasis added That is any attack against civilians whether alone or in groups is prohibited there is no need for an attacker to have a particular civilian in mind when he attacks 710 Defence Appeal Brief para 319 fn 268 See supra para 140 the required mens rea for the crime of attack on civilians is wilfulness which encompasses recklessness 711 Defence Appeal Brief para 374 The Trial Chamber defined “sniping” as the “direct targeting of individuals at a distance using any type of small calibre weapon” Trial Judgement para 184 The Appeals Chamber notes that the issue of the definition of “sniping” had previously been addressed by the Trial Chamber in its decision on Gali ’s motion for acquittal Prosecutor v Stanislav Galić Case No IT-98-29-T Decision on the Motion for the Entry of Acquittal of the Accused Stanislav Galić 3 October 2002 The same definition as that proposed on appeal was offered by Galić but was at that stage rejected by the Trial Chamber as being too narrow on the basis that the case did not focus on the specific type of weapon used but rather on whether civilians were directly targeted In any event Gali was charged not with sniping but with murder other inhumane acts and attacks on civilians 712 Defence Appeal Brief para 393 See supra para 130 there is an absolute prohibition against targeting civilians no matter where they are located such prohibition may not be derogated from on the grounds of military necessity 713 Defence Appeal Brief para 391 See supra paras 137-138 the presence of civilians within a group of people makes that group a civilian population Under certain circumstances a large number of soldiers intermingled with civilians may change that characterisation but it is presumed that civilians constitute a civilian population unless it is proved otherwise 107 Case No IT-98-29-A 30 November 2006 k A Trial Chamber cannot base its finding on the evidence of only one witness 715 B Alleged errors of facts 255 Many of Galić’s allegations are of a general introductory nature which he later explains in greater or lesser detail 716 The Appeals Chamber will only address his specific arguments 717 1 Allegations that the Trial Chamber did not consider evidence 256 In many instances Galić alleges that the Trial Chamber did not consider particular pieces of evidence As a general proposition the Trial Chamber has the duty to consider all relevant evidence The standard of review has been expressed as follows It is not necessary to refer to the testimony of every witness or every piece of evidence on the trial record … If the Trial Chamber did not refer to the evidence given by a witness even if it is in contradiction to the Trial Chamber’s finding it is to be presumed that the Trial Chamber assessed and weighed the evidence but found that the evidence did not prevent it from arriving at its actual findings … as long as there is no indication that the Trial Chamber completely disregarded any particular piece of evidence There may be an indication of disregard when evidence which is clearly relevant to the findings is not addressed by the Trial Chamber’s reasoning but not every inconsistency which the Trial Chamber failed to discuss renders its opinion defective 718 257 Therefore where Galić alleges that the Trial Chamber did not consider evidence his allegation of error will succeed only if he identifies the evidence He has to show that it is relevant and demonstrate that the Trial Chamber disregarded that evidence If he makes no demonstration that the Trial Chamber disregarded the evidence the Appeals Chamber will dismiss the allegation If there is such indication the Appeals Chamber will then inquire whether such failure led to a miscarriage of justice 719 Only in that case will the Appeals Chamber revise or reverse the Trial Chamber’s findings 258 Where however the Trial Chamber did in fact consider the evidence or if the evidence referred to is not relevant to the point at hand the Appeals Chamber will dismiss the allegation without further discussion 714 Defence Appeal Brief para 396 See supra para 140 both reckless and deliberate attacks are unlawful so if a Trial Chamber finds evidence of one state of mind it does not need to inquire into the existence of the other 715 Defence Appeal Brief para 414 It is well-settled that testimony from a single witness may be the acceptable basis of establishing a material fact See e g Aleksovski Appeal Judgement paras 62-63 716 See e g Defence Appeal Brief para 252 717 Practice Direction on Appeals Requirements para 4 b see also Vasiljević Appeal Judgement para 12 718 Kvo ka Appeal Judgement para 23 footnote omitted 719 See Article 25 of the Statute 108 Case No IT-98-29-A 30 November 2006 a The Trial Chamber did consider the evidence 259 In a number of instances Galić claims that the Trial Chamber did not consider the evidence that ABiH forces fired on their own territory to gain international sympathy 720 Yet the Trial Chamber did consider and analyse this evidence and it accepted that on occasion ABIH forces may have fired on their own people 721 However it found that “only a minimal fraction of attacks on civilians could be reasonably attributed to such conduct” and most of the attacks came from the SRK 722 The Appeals Chamber sees no reason to overturn this finding and notes that in every incident in which the Trial Chamber found evidence of SRK targeting it determined that the shells or sniping had come from behind SRK lines In most instances when Galić submitted that attacks came from ABiH forces he presented this allegation as a mere possibility without presenting any facts in support 723 This miscomprehends the concept of reasonable doubt just because there is some possibility however slight that an incident could have happened in another way does not in itself raise reasonable doubt This is particularly so at the appeal level where an appellant needs to demonstrate not only some “fact or allegation”724 in support of his contention but also that no reasonable trier of fact could have ruled the way it did 725 The Trial Chamber recognised and discussed this and Galić has not demonstrated any error to the Appeals Chamber 726 it thus does not avail Galić to repeat these arguments 727 even under the application of the principle of in dubio pro reo 728 260 Similarly Galić states on various occasions that the Trial Chamber either did not take into account the fact that there was frequent fighting or ignored the activities of the ABiH 729 This is incorrect – the Trial Chamber frequently mentioned and considered the position of ABiH forces 730 261 The following allegations are also included in the category of evidence considered by the Trial Chamber a The allegation that the Trial Chamber did not consider the evidence of Defence witnesses Dunji and Kunjadi in relation to Scheduled Sniping Incidents 10 and 6 731 It did consider the evidence 732 720 See e g Defence Appeal Brief paras 341-342 See Trial Judgement para 589 see also Trial Judgement para 211 722 Trial Judgement paras 211 589 723 See e g Trial Judgement paras 341-342 724 Trial Judgement para 342 725 See Staki Appeal Judgement para 10 726 See e g Trial Judgement para 342 727 See e g Defence Appeal Brief paras 341-343 728 See e g Defence Appeal Brief para 342 729 See e g ibid paras 253 351 408 470 730 See e g Trial Judgement paras 202 204 346 414 fn 1461 721 109 Case No IT-98-29-A 30 November 2006 b The allegation that the Trial Chamber did not consider evidence regarding military targets in Alipa ino Polje 733 The Trial Chamber did consider this evidence 734 c The allegation that the Trial Chamber did not consider the layout of ABiH forces with regard to the Dobrinja area 735 It did 736 d The allegation that the Trial Chamber should have considered the fact that the grenade in Scheduled Shelling Incident 2 hit somebody 737 The Trial Chamber considered exactly that 738 262 Finally Galić claims that the Trial Chamber did not consider that Witness E a nine-year-old girl shot in Scheduled Sniping Incident 2 was wearing blue the same colour as the ABiH and was relatively tall for her age 739 The Appeals Chamber notes that the Trial Chamber specifically observed that Witness E “was maximum 150 centimeters tall and was wearing dark trousers and a blue jacket ” The Trial Chamber thus did not fail to consider these details when concluding that Witness E was targeted as a civilian 263 Therefore because the Trial Chamber considered all the evidence that Gali alleges it ignored this subground of appeal is dismissed b The evidence advanced by Galić was not relevant 264 In all of the following allegations Gali contends that the Trial Chamber ignored certain evidence however none of the evidence put forward was relevant to the Trial Chamber’s findings of guilt a Those parts of UN reports showing ABiH movement to contest evidence of SRK gunfire shelling and deaths 740 In most cases the ABiH movement is irrelevant to whether the SRK deliberately targeted civilians in any event the Trial Chamber considered and discussed evidence of ABiH positions when relevant 741 731 Defence Appeal Brief paras 294 358 Trial Judgement fn 697 733 Defence Appeal Brief para 340 734 See Trial Judgement paras 329 336 344 735 Defence Appeal Brief paras 352 359 736 Trial Judgement paras 346 355 737 Defence Appeal Brief para 395 738 Trial Judgement para 393 fn 1337 739 Defence Appeal Brief para 436 740 Defence Appeal Brief para 256 741 See e g Trial Judgement paras 253 351 408 470 732 110 Case No IT-98-29-A 30 November 2006 b The contention that neither the police nor UNPROFOR investigated Scheduled Sniping Incident 5 742 The Trial Chamber found that there was deliberate targeting from the testimony of witnesses 743 there is no requirement that there be an official investigation into an incident before a Trial Chamber can make findings with regard thereto c The testimony of Witness D as to sniping attacks on his SRK unit from ABiH soldiers 744 Even if ABiH soldiers sniped at SRK units that would not be relevant to the Trial Chamber’s findings in particular incidents that SRK soldiers sniped at civilians d The allegations that the ABiH systematically shelled its own territory with regard to Scheduled Shelling Incident 3 745 This evidence could not be relevant where the Trial Chamber found that the shells in that incident actually came from SRK territory 746 e The allegation that there was an SRK medical unit in the Faculty of Theology 747 First the existence of a particular SRK unit in a particular location has no bearing on findings that shots came from that location Second the Trial Chamber explicitly said that it could not conclude that the shooting in that incident Scheduled Sniping Incident 22 came from the Faculty of Theology rather it concluded that the shooting came from the wider area of Ne ari i 748 f The location of ABiH members with regard to Scheduled Sniping Incident 9 749 The Trial Chamber found that three young girls were deliberately targeted more than once while pulling a wheelbarrow loaded with jerry cans of water 750 The presence or not of ABiH soldiers in their vicinity would not affect that finding 265 Therefore because none of the evidence supposedly ignored was relevant to the Trial Chamber’s findings of guilt this subground of appeal is dismissed 742 Defence Appeal Brief para 273 See Trial Judgement paras 247-253 744 Defence Appeal Brief paras 288-290 745 Defence Appeal Brief paras 341-342 746 See Trial Judgement paras 340-343 747 Defence Appeal Brief para 351 748 Trial Judgement para 365 749 Defence Appeal Brief para 463 750 See Trial Judgement paras 552-555 743 111 Case No IT-98-29-A 30 November 2006 c The evidence was relevant and there is no clear showing that the Trial Chamber considered it 266 First Galić claims that the Trial Chamber did not consider Defence testimony that a direct physical examination of the victim in Scheduled Sniping Incident 16 could have established better information on the direction from which she was shot given the angle of entry and the direction of the injury channel 751 This testimony was relevant and there is no discussion of it by the Trial Chamber However the Trial Chamber also considered the varying testimony regarding the origin of the shot and the location of the wound along with the Defence’s other contentions 752 and still found based on hospital and other evidence that the bullet came from SRK lines 753 The Appeals Chamber agrees that a physical examination of the victim may have been helpful if Galić had conducted such an examination the Trial Chamber would have been obliged to consider and discuss it However there was no physical examination for the Trial Chamber to consider and it is clear that the Trial Chamber took into account the uncertainty surrounding the wound 267 Second Galić submits that the Trial Chamber should have considered that the brewery in Bistrik was a military target 754 The Appeals Chamber notes that the brewery in Bistrik is mentioned once by the Trial Chamber in a brief discussion of an incident testified to by one witness of an attack on the brewery killing 15 people 755 The Prosecution submits that there is some evidence in the trial record that the brewery was used as a military installation supplying the army with water and ammunition there is also evidence that it was used by civilians to obtain water 756 The Prosecution argues that even if it was a dual-use building that still would not make it a legitimate target 757 268 The purpose of the brewery – and what the SRK knew of that purpose and when – is an important factor in determining if attacks on or around the brewery were deliberately aimed at civilians indiscriminate or disproportionate or if they were legitimate military forays Because the Trial Chamber discussed the presence or absence of military targets in relation to other incidents failure to do so in this instance is an indication that it did not consider whether the brewery was a military target Such omission was an error on the Trial Chamber’s part 269 However the attacks on the area of Stari Grad were not part of the scheduled attacks but were considered in the context of a wider discussion about a campaign of attacks on civilians Even 751 Defence Appeal Brief para 410 Trial Judgement paras 422-423 427 fn 1483 753 Trial Judgement paras 427-429 754 Defence Appeal Brief para 421 755 Trial Judgement para 436 756 Prosecution Response Brief paras 15 38-15 42 757 Prosecution Response Brief para 15 45 752 112 Case No IT-98-29-A 30 November 2006 if the alleged attack on the brewery was a legitimate strike against a military target there is enough evidence of other attacks to lead to the conclusion that civilians in Stari Grad and certainly in Sarajevo as a whole were deliberately targeted 758 Therefore this error did not lead to a miscarriage of justice and does not warrant overturning the decision 270 Finally Galić claims that the Trial Chamber should not have determined there was a pattern of fire by the SRK against civilians without considering the activities of ABiH forces 759 As an assertion of error this fails on two counts First it is not strictly necessary to discern the ABiH movements to determine an SRK pattern Where there are many incidents showing clearly that civilians have been targeted as the Trial Chamber found throughout the Trial Judgement 760 those incidents can suffice to show a pattern of fire Second the Trial Chamber in many instances although not all discussed the positions and movements of ABiH forces 761 This indicates that it kept the positions and actions of the ABiH forces in mind when deciding both specific incidents and the evidence of a campaign 762 271 Therefore because any relevant evidence that was possibly not considered by the Trial Chamber would not have affected the Trial Chamber’s findings of guilt this subground of appeal is dismissed 2 Allegations that the Trial Chamber came to the incorrect conclusion based on the evidence 272 Galić frequently alleges that the Trial Chamber came to an incorrect conclusion based on the evidence Where Galić clearly supports his argument that the conclusion should be different the Appeals Chamber will consider the argument However it will not review the evidence and the conclusion to determine whether the Trial Chamber was correct but rather whether no reasonable trier of fact could have reached that particular conclusion 763 758 See Trial Judgement paras 435-437 Defence Appeal Brief para 470 760 See e g Trial Judgement paras 253 258 271 276 284 289 321 356 360 367 397 496 509 518 537 551 556 761 See e g Defence Appeal Brief paras 253 351 408 470 762 Galić also alleges that firing errors and weaponry’s lack of precision were not taken into account See Defence Appeal Brief para 402 To the contrary as the Appeals Chamber noted in ground 12 the Trial Chamber properly assessed the legality of the attacks See Trial Judgement paras 41-62 188 763 See Vasiljevi Appeal Judgement para 12 759 113 Case No IT-98-29-A 30 November 2006 273 Further the Appeals Chamber will look only at the arguments actually made by Galić the Appeals Chamber will not devise its own arguments nor will it look at Judge Nieto Navia’s Dissent for arguments unless Galić has explicitly repeated those arguments 764 274 In those instances where Galić does not state reasons as to why the Trial Chamber reached a putatively incorrect conclusion the Appeals Chamber will dismiss the allegation without further discussion 765 a Allegations presenting reasons 275 In a number of instances Gali explains why he believes the Trial Chamber came to the wrong conclusion In each case the Appeals Chamber will consider whether given Gali ’s alternative explanation no reasonable trier of fact could have reached that conclusion 276 First Galić alleges that the Trial Chamber could not have concluded that the JNA attacked Sarajevo because the JNA was also attacked 766 The one contention does not rule out the other so this allegation does not affect the Trial Chamber’s conclusion 277 Second Galić alleges that there was no sniping from the Grbavica area because there was a line of separation next to Grbavica including along the Miljacka River so there was daily fighting there and in the area of the Jewish Cemetery and SRK fire from Grbavica was in response to ABiH fire from other parts of the city 767 The Trial Chamber did consider evidence of fighting between the two sides768 but it also found based on the testimonies of numerous witnesses that there was a great deal of firing that was not a normal part of warfare and was in fact intentional sniping or shelling against civilians 769 Galić has not shown why that testimony should be disregarded 278 Third Galić alleges that the conclusion that a victim was targeted because there were no soldiers around ignores the possibility that the victim could have been hit by a ricochet from a trailer or container 770 But the mere fact that a bullet ricocheted before hitting someone does not mean that the victim was not targeted as a civilian it is not necessary that every shot aimed at a 764 Vasiljevi Appeal Judgement para 12 “ T he Appeals Chamber cannot be expected to consider a party’s submissions in detail if they are obscure or vague … A party alleging an error of fact must explain what the alleged error is and why a reasonable trier of fact could not make this finding and in what way it leads to a miscarriage of justice ” The arguments must thus be apparent from the Appeal Brief itself 765 Vasiljevi Appeal Judgement para 12 “Where an appellant only challenges the Trial Chamber’s findings and suggests an alternative assessment of the evidence without indicating in what respects the Trial Chamber’s assessment of the evidence was erroneous then the appellant will have failed to discharge the burden incumbent upon him” 766 Defence Appeal Brief fn 197 767 Defence Appeal Brief paras 263-265 768 See Trial Judgement paras 241-242 769 See Trial Judgement paras 228-240 243 770 Defence Appeal Brief para 271 114 Case No IT-98-29-A 30 November 2006 civilian be a perfect one for the shot to be properly construed as an intentional attack Further if a bullet ricochets in an area where there are no soldiers it is reasonable to assume that such shots are intentionally directed against civilians 279 Fourth Galić alleges that the Trial Chamber could not have found deliberate sniping from Hrasno Brdo because of the possibility of random injury during the “daily” exchange of fire 771 Yet the Trial Chamber heard about and discussed numerous incidents of sniping that give rise to the inference of deliberate attack rather than accidental bullets 772 The Appeals Chamber does not find that no reasonable trier of fact could have come to the same conclusion 280 Fifth Galić alleges that the Trial Chamber could not have found that Nafa and Elma Tari were shot from Ozrenska Street because they could not identify exactly where the shot had come from 773 In fact the Trial Chamber did hear evidence indicating the direction of the shooting containers were set up to protect people from the Ozrenska Street snipers a second shot almost hit Nafa and Elma Tari and a policeman testified to hearing shooting from Ozrenska Street that day 774 The Trial Chamber thus reasonably concluded that the shots came from Ozrenska Street 281 Sixth Galić alleges that the Trial Chamber was incorrect in finding in Scheduled Shelling Incident 3 an SRK desire to hit civilians rather he argues that the SRK’s intention was to hit military targets based on the large number of shells fired 775 The Appeals Chamber sees no reason why an army would not use a large number of shells against civilians if it is the army’s intent to attack civilians The Appeals Chamber finds that the number of shells deployed does not compel a conclusion either way 282 Seventh Galić alleges that the Trial Chamber could not have concluded there was an intentional attack on Dobrinja “C5” well because it did not consider nearby military targets including a supply tunnel and command post and ignored Galić’s claim that the well was not visible from SRK positions 776 Yet the Trial Chamber did consider military targets including the tunnel and post and found that either they were not operational or were too far away from the impact to have been the true objective 777 In support of its finding that SRK had knowledge of the well’s location it discussed other attacks on that well 778 771 Defence Appeal Brief para 284 Trial Judgement paras 262 267-289 773 Defence Appeal Brief para 293 774 Trial Judgement paras 267 269-270 775 Defence Appeal Brief para 348 776 Defence Appeal Brief paras 389-390 777 Trial Judgement paras 395-396 fn 1348 778 Trial Judgement para 396 fn 1348 772 115 Case No IT-98-29-A 30 November 2006 283 Eighth Galić alleges that Witness E hit in Scheduled Sniping Incident 3 could have been hit by a ricochet because there was regular fighting in her area 779 But the Trial Chamber also found that the victim was hit by a single bullet and that another shot was fired at the car in which she was being taken to hospital 780 The Appeals Chamber does not find that no reasonable trier of fact could have concluded as the Trial Chamber did that two single shots aimed at the same person equate to deliberate sniping 284 Ninth Galić alleges that the Trial Chamber erred in finding that Anisa Pita was wounded by a bullet shot from Baba Stijena hill because her parents described differently the location of Baba Stijena the time of the incident and what later happened with the bullet 781 Galić does not explain these contentions in the Defence Appeal Brief and the Appeals Chamber cannot determine why such allegation would render the Trial Chamber’s decision in this regard unreasonable 285 Tenth Galić contends that the Trial Chamber erred in concluding from witness statements that the area around Brije ko Brdo was “far away” from the confrontation line because witnesses said the distance was between 300m and 500m 782 The Trial Chamber noted and accepted this testimony783 and still found the distance “far from the confrontation lines” 784 indeed it expressly determined a distance of 300m-400m 785 The Trial Chamber was not just reasonable but perfectly correct to decide that this distance was far away when the incidents alleged were those of sniping 286 Eleventh Galić contends that the Trial Chamber erred in finding that General Mladi ordered the establishment of the SRK because the evidence cited established only that Mladi was Commander-in-Chief of the General Staff of the VRS 786 The Appeals Chamber finds that whether the SRK was established by Mladi ’s order or by an order of the entire General Staff or by some other means entirely is irrelevant for the purposes of assessing Galić’s guilt 287 Twelfth Galić contends that the Trial Chamber was wrong to conclude that the shells in Scheduled Shelling Incident 3 came from behind SRK lines because Alipa ino Polje the area hit was about a kilometre from Ne ari i an area held by SRK forces and thus a possible destination for ABiH fire 787 he claims that the actual distance between the areas is closer so there was good 779 Defence Appeal Brief para 435 Trial Judgement para 515 781 Defence Appeal Brief paras 450-451 782 Defence Appeal Brief para 407 783 Trial Judgement para 425 784 Trial Judgement para 417 785 Trial Judgement para 425 786 Defence Appeal Brief fn 197 787 Defence Appeal Brief para 343 Trial Judgement paras 341-342 780 116 Case No IT-98-29-A 30 November 2006 reason to believe the ABiH may have mistakenly shelled Alipa ino Polje 788 Whether the distance is greater or smaller the Trial Chamber did not err first it considered the possibility that the ABiH had accidentally shelled Alipa ino Polje second as the Trial Chamber stated there was no evidence at all that the fire came from ABiH ranks beyond the fact that it was possible which is not evidence 789 288 Finally Galić submits that Witness G was not targeted in Scheduled Sniping Incident 4 because he had heard shooting a few minutes before he was shot which indicates that there was fighting in the area so he may have been hit by a stray bullet 790 Witness G said “I heard the shooting That was the only thing I heard I didn’t hear the bullets” 791 It is unclear from his testimony whether the shooting he heard was that of large-scale fighting or if it was small arms aimed at or near him However Galić ignores other evidence that was strongly corroborative of targeting that when Witness G’s neighbours came to help him they were shot at repeatedly in 10 to 15 different periods as they dragged Witness G to the house 792 The Appeals Chamber finds that Galić has failed to demonstrate that no reasonable trier of fact could have reached that conclusion 289 Therefore because Gali has failed to show in any of the above instances that no reasonable trier of fact could have reached the same conclusions as the Trial Chamber did this subground of appeal is dismissed b Allegations not presenting reasons 290 The Appeals Chamber finds that for the allegations below Galić fails to present reasons as to why the Trial Chamber reached a putatively incorrect conclusion The Appeals Chamber held in the Vasiljevi Appeal Judgement that “ w here an appellant only challenges the Trial Chamber’s findings and suggests an alternative assessment of the evidence without indicating in what respects the Trial Chamber’s assessment of the evidence was erroneous then the appellant will have failed to discharge the burden incumbent upon him ”793 Each of the following arguments will consequently be dismissed 788 Defence Appeal Brief para 343 Trial Judgement para 342 790 Defence Appeal Brief para 460 791 T 2397 792 Trial Judgement para 547 793 Vasiljevi Appeal Judgement para 12 789 117 Case No IT-98-29-A 30 November 2006 a “The Trial Chamber erroneously concluded that the Prosecution presented evidence … which could serve as general facts for factual findings corroborating that the intent existed for deliberate targeting of civilians” 794 b “The majority of the Trial Chamber finds that the Prosecution has proved beyond reasonable doubt that in the scheduled incident No 5 Almasa Konjhodzi a civilian was deliberately targeted and killed by a bullet fired from the territory controlled by the SRK and that the event did take place just as described by the witnesses Such a conclusion of the Majority is … based on an incomplete analysis of evidence” 795 c “The Majority finds … that Hatema Mukanovi … was killed by a bullet fired from the SRK positions The Defence finds this conclusion erroneous as none of the above stated pieces of evidence used by the Majority for its findings … is sufficient to form such a set of facts which would allow this conclusion to be made” 796 d “The Majority accepts that it was not possible to determine the place … which was the source of fire but nevertheless finds that the shot was fired from the territory under … SRK control This finding of the Majority is erroneous” 797 e “The fact proving whether a person was hit deliberately or by a s tray bullet or a bullet which ricocheted cannot be established on the basis of the argument that the victim was hit by one bullet only and the circumstance that in the vicinity of the victim there were no soldiers present” 798 f “The conclusion of the Trial Chamber is erroneous in terms that scheduled shelling incident No 3 constituted an attack that was at the very least indiscriminate as to its target which was primarily if not entirely a residential neighbourhood” 799 g “The Majority erroneously finds that the fact of only one bullet having been fired was sufficient ground s to conclude that the passengers on board the bus were deliberately targeted” 800 794 Defence Appeal Brief para 261 Defence Appeal Brief para 269 footnotes omitted 796 Defence Appeal Brief para 305 footnotes omitted 797 Defence Appeal Brief para 320 795 118 Case No IT-98-29-A 30 November 2006 h “The Majority gives an erroneous conclusion rejecting the possibility that Ramiza Kundo could have been hit by a stray bullet only because she had stated that there were no fights at that place and on that day” 801 i “ A t a distance of 760 meter s candle light can not be seen especially not if the candle is located in the room where the light is being dispersed” 802 j “ T he distance was 1500 meters not a distance for deliberate targeting” 803 k “At the distance of 900 meters in the morning hours in the woods when it was overcast and cloudy it would not be possible to deliberately target a person because at such a distance nothing can be seen even if it was possible to establish a visual line of sight between the place of firing the shot and the place of the injury of the victim” 804 291 Therefore because Gali did not present any reasons as to why the Trial Chamber reached an incorrect conclusion this subground of the appeal is dismissed 3 Allegations that contain misrepresentations of the evidence or the Trial Judgement or that ignore other findings of the Trial Chamber 292 In a number of instances Galić has misstated the evidence misstated or misrepresented what the Trial Chamber said in the Trial Judgement ignored other evidence or ignored a relevant part of the Trial Judgement In each of these cases the Appeals Chamber will dismiss the allegation without further discussion 293 Galić states frequently with regard to particular incidents that there was no proof that optical sights were used 805 On at least one occasion he says with no basis in fact that the Trial Chamber found that “infrared or optical sights were not used” 806 although the Trial Chamber never made such a finding This lack of proof he contends fatally undermines findings that civilians were targeted at a distance The Appeals Chamber finds that Galić is incorrect for a number of reasons 798 Defence Appeal Brief para 326 Defence Appeal Brief para 349 800 Defence Appeal Brief para 373 801 Defence Appeal Brief para 413 802 Defence Appeal Brief para 307 Galić also claims that the candlelight was blocked by drawn shutters but that ignores the evidence that the blinds were thin cotton and had already been torn by previous shooting See infra para 295 k 803 Defence Appeal Brief para 370 804 Defence Appeal Brief para 440 footnote omitted 805 See e g Defence Appeal Brief paras 272 356 365 372 436 452 fns 253 261 322 806 Defence Appeal Brief fn 255 799 119 Case No IT-98-29-A 30 November 2006 294 First in order to prove that a particular attack constituted a deliberate attack on civilians it is not necessary to demonstrate every detail of the attack Second in at least one instance in the Trial Judgement the Trial Chamber recounted testimony of a witness who observed SRK soldiers using binoculars 807 Third the Trial Chamber found that the SRK was a professional well-run properly equipped army 808 It is a logical inference that such an army especially when fighting at a distance possesses optical sights binoculars rangefinders or other equipment necessary to be effective at a distance That is the finding that the army was properly equipped leads to a presumption that the army owned such equipment and Galić has failed to rebut the presumption Therefore there was no need for the Trial Chamber to find in any particular instance that the SRK member doing the firing had such a sight 295 Other allegations that contain misstatements of the evidence or the record or ignore other Trial Chamber findings are a Galić contends that the Trial Chamber did not consider evidence tending to disprove the existence of a campaign 809 However in every alleged incident the Trial Chamber considered Defence evidence tending to prove that those injured were not targeted were hit accidentally or were hit by their own forces 810 b Galić refers to the Trial Chamber’s finding that the number of incidents was not sufficient to be considered a widespread or systematic campaign811 as proof for the non-existence of the campaign That statement ignores the fact that the Trial Chamber also stated in the same paragraph that it was also looking at evidence – beyond the mere number of incidents – that the incidents “were not isolated … but representative of a campaign ”812 c Galić contends that the Trial Chamber did not analyse the UN reports as to fighting and warfare in the city 813 In fact the Trial Chamber analysed the reports extensively in light of all the evidence presented to it 814 807 Trial Judgement para 263 See Trial Judgement paras 616-617 809 Defence Appeal Brief para 254 810 See Trial Judgement paras 206-594 811 Defence Appeal Brief para 255 812 Trial Judgement para 208 813 Defence Appeal Brief para 257 814 Trial Judgement paras 210-225 808 120 Case No IT-98-29-A 30 November 2006 d Galić contends that the UN reports did not contain detailed evidence on shelling targets 815 Yet the UN reports and UN officials gave detailed evidence about some of the shelling 816 e Galić contends that Witness Hvaal did not provide photographic evidence in connection with the incidents to which he testified 817 That is clearly incorrect 818 f Galić contends that one UN witness said he did not hear of any trams being hit 819 that statement ignores the fact that the witness also said trams were probably shot at once UN escorts ceased 820 g Galić contends that the testimony as to attacks in Hrasno Brdo was not relevant because it discussed a different part of town 821 However the Trial Chamber explicitly discussed that the victims were in Hrasno Brdo but the attacks came from Grbavica a neighbourhood adjoining Hrasno Brdo 822 h Galić contends that two victims could not have been shot from Ozrenska Street which was elevated because their injuries caused by the same bullet were at the same height 823 But the record shows as was pointed out by the Trial Chamber that there is no evidence as to the relative height of the wounds 824 i Galić contends that the loader in Scheduled Sniping Incident 15 was not targeted because later photographs showed the glass was not damaged 825 However witnesses testified that the glass in the loader had been replaced before the taking of the photograph which still showed bullet damage to the bodywork 826 j Galić contends that the Trial Chamber should not have concluded that the victim in Scheduled Sniping Incident 20 was targeted from SRK lines because the evidence 815 Defence Appeal Brief para 257 See Trial Judgement paras 210 214 220 817 Defence Appeal Brief para 266 818 See T 2278-2284 2290-2291 2356 2358-2360 2363-2364 2370 discussing the five photographs admitted as P3625 819 Defence Appeal Brief para 280 820 T 18178 821 Defence Appeal Brief para 285 822 Trial Judgement paras 264-265 823 Defence Appeal Brief para 295 824 Trial Judgement para 270 825 Defence Appeal Brief fn 246 826 T 2806-2807 816 121 Case No IT-98-29-A 30 November 2006 only showed the layout and position of his apartment in relation to SRK positions 827 But other evidence leading to that conclusion was adduced as well 828 k Galić contends that little or nothing could be seen through the blinds of witness Mukanovi ’s apartment 829 However the witness had testified that the blinds were thin cotton with holes made from earlier shooting 830 l Galić contends that unscheduled sniping and shelling incidents were not examined by the Trial Chamber 831 To the contrary they were examined throughout the Trial Judgement 832 m Galić contends that daily fighting in Alipa ino Polje meant that the possibility of stray bullets could not be discounted in Scheduled Sniping Incident 23 833 That contention ignores other evidence leading to the conclusion of deliberate targeting 834 n Galić contends that there was no serious analysis of the shelling incidents in Alipa ino Polje including the existence of military targets 835 The Trial Chamber to the contrary referred to a large amount of evidence regarding shelling activities in that area 836 o Galić contends that the Trial Chamber found there was no targeting from the Faculty of Theology in the unscheduled Dobrinja incident this allegation ignores the fact that the Trial Chamber found targeting from elsewhere in the surrounding area of Ne ari i 837 p Galić contends that the Trial Chamber did not analyse any non-scheduled incidents in the Dobrinja area 838 To the contrary it did 839 827 Defence Appeal Brief para 304 Trial Judgement paras 278 283 829 Defence Appeal Brief paras 305 307-308 830 T 3058-3061 831 Defence Appeal Brief para 317 832 See e g Trial Judgement paras 417-419 558-560 833 Defence Appeal Brief para 321 834 See Trial Judgement paras 311-316 835 Defence Appeal Brief paras 334-335 338 836 See Trial Judgement paras 329 331-345 837 See Defence Appeal Brief para 351 Trial Judgement para 365 838 Defence Appeal Brief para 353 839 Trial Judgement paras 347-350 828 122 Case No IT-98-29-A 30 November 2006 q Galić contends that Witness D evlan confirmed there were barricades at the bridge where she was shot 840 This statement ignores her testimony that she had moved beyond the barricades when she was shot 841 r Galić contends that no evidence pointed to a shot fired from the SRK position in Ne ari i in Scheduled Sniping Incident 22 842 There was such evidence from witnesses’ testimonies of what they heard and from line-of-sight calculations 843 s Galić contends that the medical documentation arising from Scheduled Shelling Incident 1 does not indicate the number of victims 844 The documentation does in fact state numbers of victims though different sources state different numbers – a fact the Trial Chamber explicitly adverted to 845 t Galić contends that the evidence in Scheduled Shelling Incident 1 excludes the possibility of deliberate targeting 846 This allegation ignores the fact that the Trial Chamber considered Scheduled Shelling Incident 1 an example of indiscriminate shelling not deliberate targeting 847 u Galić contends that because UNPROFOR was monitoring Toplik Scheduled Shelling Incident 1 could not have originated from there 848 Yet the Trial Chamber did not find that the shelling originated from Toplik only from somewhere behind SRK lines 849 v Galić contends that the Trial Chamber erred when considering correction fire in Scheduled Shelling Incident 1 because there was too little time between the two shellings for the second to have been an attempt at the trenches rather than the parking lot 850 This allegation misstates the Trial Chamber’s finding it found that both shellings were probably aimed at the parking lot because they were too close together in time for the second one to have been correction fire 851 840 Defence Appeal Brief para 367 Trial Judgement para 359 842 Defence Appeal Brief para 370 843 Trial Judgement para 365 844 Defence Appeal Brief para 380 845 Trial Judgement para 376 846 Defence Appeal Brief para 382 847 Trial Judgement para 387 848 Defence Appeal Brief para 384 849 Trial Judgement paras 377-380 850 Defence Appeal Brief para 385 851 Trial Judgement para 382 841 123 Case No IT-98-29-A 30 November 2006 w Galić contends that the Trial Chamber did not analyse the civilian-military mix of the population with regard to each of the alleged incidents and did not keep the mingling of the population in mind 852 This is patently incorrect 853 x Galić contends that the area around the well hit in Scheduled Shelling Incident 2 was strategically vital to the ABiH because it was near the opening of a military tunnel 854 However there was much evidence that the tunnel was not operational at time of the shelling 855 y Galić contends that the Trial Chamber was incorrect in finding that there were no military targets in the area of Scheduled Shelling Incident 4 856 To the contrary the Trial Chamber found there were military installations but concluded given the sequence of shell explosions that they were not the target of the shelling 857 z Galić contends that the testimony of witness DP35 was the main basis for the finding that civilians at Sarajevo airport were targeted 858 In fact many witnesses testified to evidence supporting such targeting 859 aa Galić contends that the Trial Chamber did not compare and contrast the evidence about Scheduled Sniping Incident 16 860 This is incorrect 861 bb Galić contends that only one witness testified to the attack on victim Osmanovi 862 That is incorrect two witnesses did 863 This fact also overcomes his contention that there is no proof that Osmanovi was hit by a bullet fired from a firearm 864 cc Galić contends that Witness E testified to two sets of trenches with regard to Scheduled Sniping Incident 3 which supposedly indicates that the SRK were firing 852 Defence Appeal Brief para 391 See Trial Judgement paras 206-563 854 Defence Appeal Brief para 394 855 Trial Judgement fn 1348 856 Defence Appeal Brief paras 399-400 857 Trial Judgement paras 405 409 858 Defence Appeal Brief para 405 859 Trial Judgement paras 411-417 860 Defence Appeal Brief para 409 861 Trial Judgement paras 423-427 862 Defence Appeal Brief para 414 863 Trial Judgement fns 1518-1519 Galić also states that “not a single piece of evidence” was presented in support of the allegation Defence Appeal Brief para 416 He is forgetting that testimony is evidence 864 Defence Appeal Brief para 415 853 124 Case No IT-98-29-A 30 November 2006 at legitimate military targets 865 This ignores the fact that the witness also said the trenches were 700m away from her house where she was shot 866 dd Galić contends that Witness Jusovi said that during the day on which she was shot “there were many combats” 867 This statement purporting to prove that she was shot accidentally ignores the fact that at the time of her shooting which was early in the morning she heard no firing other than that aimed at her 868 ee Galić contends that no witnesses identified Baba Stijena making conclusions about it unreliable 869 This is incorrect 870 ff Gali contends that the Trial Chamber failed to determine the armies’ positions and layouts and the types of combat actions in Vogo a 871 This kind of contention repeated a number of times in various contexts is patently incorrect The “finding” attacked is the opening paragraph of a new section in the Trial Judgement The Trial Chamber as it does in many other places briefly mentions the zone where a number of incidents allegedly took place and sketches out the Prosecution’s main allegation 872 Such paragraphs in some instances the Trial Chamber uses more than one serve as introductions they present the allegations which are meant to be proven they do not present findings For the record the Trial Chamber describes these details in the following paragraphs of the Trial Judgement where it looks at each incident and puts the Prosecution’s proof to the test 873 gg Galić contends that the Prosecution did not prove that Vildana Kapur was visible from SRK positions 874 But the Trial Chamber discussed the visibility issue and found that there was a line of sight 875 hh Galić contends that the shooting of Elma Jakupovi was not examined at trial 876 yet the Trial Chamber examined the shooting in the very same paragraph where it was mentioned 877 865 Defence Appeal Brief para 435 T 4100 867 Defence Appeal Brief para 441 868 Trial Judgement fn 1812 869 Defence Appeal Brief para 448 870 T 3990 T 4008-4009 T 12943-12950 871 Defence Appeal Brief para 455 872 Trial Judgement para 544 873 See Trial Judgement paras 545-557 874 Defence Appeal Brief para 464 875 Trial Judgement para 554 866 125 Case No IT-98-29-A 30 November 2006 ii Galić contends that it was incorrect to say many hundreds of civilians were killed and thousands wounded because the Tabeau Report mentions a maximum of 253 deaths and the number of injured cannot be thousands 878 This mischaracterisation is so large the Appeals Chamber can only posit a clerical error Rather the Tabeau Report claims that just under 1 300 civilians were killed and just under 5 000 wounded 879 The number 253 is in reference to those civilians killed by sniping 880 jj Galić contends that “ t he conclusion of the Majority is erroneous that the natural and urban … topography of the city of Sarajevo gave advantage to the SRK forces to target civilians in town But a ll the elevated points in Sarajevo except for the 4 or 5 high-rise buildings in Grbavica … were held by the ABiH forces” 881 The Trial Chamber found that the “natural and urban topography of the city of Sarajevo such as ridges and high-rise buildings provided vantage-points to SRK forces to target civilians moving around the city” 882 That is it did not state what Galić alleges Further the Trial Chamber discussed the particular high areas controlled by the SRK which Galić has not contradicted 883 296 Therefore because these allegations either misstate the evidence or the Trial Judgement or ignore other vital evidence this subground of appeal is dismissed 4 Challenges to findings without presenting argument 297 Any challenge to the findings must indicate in what respects the Trial Chamber’s assessment of the evidence was incorrect if an appellant merely challenges the findings without making such an indication he will have failed to discharge the burden incumbent upon him 884 On a number of occasions Galić claims that a finding of the Trial Chamber was incorrect but fails to present any argument in support Frequently he says only that the finding was “erroneous” or “clearly erroneous” without giving any content to the allegation These allegations will be dismissed without discussion 876 Defence Appeal Brief para 467 Trial Judgement para 559 Galić is correct that all details were not established beyond reasonable doubt but this was one of the illustrative incidents discussed by the Trial Chamber it did not find beyond a reasonable doubt that the incident happened as described 878 Defence Appeal Brief paras 474-475 879 Trial Judgement para 579 880 Trial Judgement para 579 881 Defence Appeal Brief para 476 fn 404 882 Trial Judgement para 585 883 Trial Judgement para 585 884 See Vasiljevi Appeal Judgement para 12 877 126 Case No IT-98-29-A 30 November 2006 298 Included in this category are a The allegation that the finding that there were no soldiers in the vicinity of Almasa Konjhodzi ’s shooting was incorrect 885 b The allegation that the Trial Chamber was wrong to find there was no fighting on the day Witness AG was shot 886 c The allegation that the finding that there were no military targets being attacked in Alipa ino Polje was incorrect 887 d The allegation that witness testimony could not allow conclusions about when or where shelling occurred or where military targets were in Dobrinja 888 e The allegation that the Trial Chamber erroneously analysed the reports of expert witnesses in Scheduled Shelling Incident 1 889 f The allegation that the Trial Chamber erroneously analysed the testimony of witnesses Mehoni Grebi A E A K 2 and Arifagi with regard to scheduled shelling incidents in Dobrinja 890 g The allegation that the Trial Chamber failed to analyse contradictions in the testimonies of numerous witnesses about Scheduled Shelling Incident 4 891 h The allegation that the Trial Chamber erred in finding that the shells in Scheduled Shelling Incident 4 hit civilians in peaceful activities and that the SRK was at least indiscriminate as to the shells’ target 892 i The allegation that SRK attacks on Sarajevo airport were aimed at ABiH soldiers not civilians 893 j The allegation that the finding that a variety of sources indicated indiscriminate shelling in Novi Grad is untenable894 because the Trial Chamber’s analysis of testimony was incomplete and led to erroneous conclusions 895 885 Defence Appeal Brief para 269 Defence Appeal Brief para 311 887 Defence Appeal Brief paras 343 350 888 Defence Appeal Brief para 376 889 Defence Appeal Brief paras 381-382 890 Defence Appeal Brief para 387 891 Defence Appeal Brief para 397 886 127 Case No IT-98-29-A 30 November 2006 k The allegation that there is no single piece of evidence that firing in Stari Grad originated from SRK areas 896 l The allegation that the finding based on uncontested evidence that the SRK controlled picasta Stijena was incorrect 897 m The allegation that the videos and photographs in support of Scheduled Sniping Incident 3 show that the victim could not have been hit by a direct shot 898 n The statement that the Prosecution presented no evidence on the injuries to Witness Jusovi 899 o The allegation that the finding that civilians in Sedrenik were targeted deliberately or indiscriminately is erroneous 900 p The contention that the mention of the destruction of a civilian house in @u is unacceptable 901 299 Therefore because Gali has not stated why these findings of the Trial Chamber were incorrect this subground of appeal is dismissed 5 Challenges to findings purely because other witnesses testified differently 300 In many cases Galić argues that the Trial Chamber should not have reached a certain finding because a witness or witnesses that he presented testified to the opposite fact In other words the Trial Chamber found the testimony of Prosecution witnesses more persuasive than that of Defence witnesses This allegation fundamentally miscomprehends the difference between a trial and an appeal proceeding At trial witnesses frequently contradict one another and it is the duty of the Trial Chamber to weigh different witnesses’ evidence according to certain well-settled indicia including credibility reliability plausibility and corroboration Such weighing will not be lightly disturbed by the Appeals Chamber 902 It is thus likely903 that many findings will be made that are at 892 Defence Appeal Brief paras 400-401 Defence Appeal Brief para 406 894 Defence Appeal Brief para 418 895 Defence Appeal Brief para 420 896 Defence Appeal Brief para 422 Contra Trial Judgement para 435 897 Defence Appeal Brief para 431 898 Defence Appeal Brief para 434 899 Defence Appeal Brief para 442 900 Defence Appeal Brief para 445 901 Defence Appeal Brief para 468 Galić also attacks the “stance” that there were no military targets what he does not see is that the Trial Chamber was repeating testimony not making findings 902 Kupreškić et al Appeal Judgement paras 31-32 893 128 Case No IT-98-29-A 30 November 2006 odds with some witnesses’ testimony Therefore an argument on appeal that a Trial Chamber finding must be overturned because it is contradicted by a witness is by itself no argument at all 904 301 Thus when faced with any such allegations the Appeals Chamber will dismiss the allegation without further discussion Included in this category are a Allegations that testimony about actions against the State Hospital should be disregarded because another witness had testified that the hospital was targeted only at the beginning of the conflict 905 b A challenge to the finding that the SRK controlled the higher parts of Hrasno Brdo hill because some witnesses testified differently 906 c Allegations that the SRK could not have fired on Nafa and Elma Tari from Ozrenska Street because witnesses said the SRK had no positions there 907 d A challenge to the finding that the shooting in Scheduled Sniping Incident 15 came from SRK lines because witnesses DP10 and DP16 whom the Trial Chamber found to be inconsistent with one another had testified differently 908 e The dispute about the distance between the bus shot in Scheduled Sniping Incident 22 and the separation line comes down to one Defence witness testifying differently from other witnesses 909 Further the dispute about the view shown in photographs used to demonstrate the area in Scheduled Sniping Incident 22 is based only on contradictory statements of witnesses which were assessed by the Trial Chamber 910 f Disagreements between defence witnesses and other witnesses about where the front lines were in Dobrinja 911 903 In contentious proceedings such as these it is all but inevitable Similar arguments such as complaints that the Trial Chamber believed a witness it should not have or did not believe a witness it should have are also misconceived Of course an allegation that a Trial Chamber erred because it made a finding contrary to overwhelming evidence is a different matter and must be taken seriously However Galić has not made any such arguments 905 Defence Appeal Brief para 268 It should also be noted that here and in many other cases Galić mentions only the identity of the witness who alleged contradictory facts without providing a reference to the transcript or a document That alone is enough to dismiss an argument See Vasiljevi Appeal Judgement paras 10-11 stating that the Appeals Chamber will dismiss arguments that do not “provide the Appeals Chamber with exact references to the parts of the records transcripts judgements and exhibits to which reference is made” 906 Defence Appeal Brief paras 282-283 907 Defence Appeal Brief para 297 908 Defence Appeal Brief para 300 909 Defence Appeal Brief para 370 910 Defence Appeal Brief para 371 911 Defence Appeal Brief para 384 904 129 Case No IT-98-29-A 30 November 2006 g Defence witness testimony in contradiction to other witness testimony that there were trenches 50m from the well hit in Scheduled Shelling Incident 2 912 h A challenge to the finding that victim Kundo was not hit from behind SRK lines because a Defence witness said he could not have been 913 i A Defence expert’s opinion that witness Jusovi may have been shot by a ricochet 914 j A challenge to the finding that the mine in Scheduled Shelling Incident 2 was fired from the direction west-north-west because Defence witness Vili i gave an explanation of his calculations and his inversion of a photograph 915 Galić does not explain why his witness’s calculations are more reliable than those accepted by the Trial Chamber 302 Therefore because each of these allegations contends merely that a finding should be overturned because other witnesses testified to something different this subground of appeal is dismissed 6 Re-presentation of the same argument that was made unsuccessfully at trial 303 Because this is not a trial de novo Galić cannot simply repeat the same arguments that were made at trial without saying how the Trial Chamber erred “an appeal is not an opportunity for the parties to reargue their cases” 916 In many instances Gali ’s argument on appeal is a mere repetition of an argument that was made and rejected at trial and he has not demonstrated why no reasonable trier of fact could have rejected his arguments For each one of these the Appeals Chamber will dismiss the allegation without further discussion Included in this category are a The allegation that the bullets hitting the tram in Scheduled Sniping incident 24 came from ABiH forces because they also held positions in the Jewish Cemetery or that the tram was hit by a stray bullet 917 b The allegation that there was no possibility of visual observation from the SRK lines to the position where Witness AG was hit 918 912 Defence Appeal Brief para 394 Defence Appeal Brief para 412 914 Defence Appeal Brief para 441 915 Defence Appeal Brief para 221 916 Kupreškić et al Appeal Judgement para 22 917 Defence Appeal Brief paras 278-279 see Trial Judgement paras 256-258 913 130 Case No IT-98-29-A 30 November 2006 c The allegation that there was fighting in the vicinity at the time of Scheduled Sniping Incident 25 919 d The allegation that there were ABiH soldiers on the bridge in Dobrinja during Scheduled Sniping Incident 6 920 e The allegation that there was an error in determining North in the map describing Scheduled Shelling Incident 1 leading to an erroneous determination of the shelling origin 921 f The allegation that the witnesses in Scheduled Sniping Incident 4 showed that the separation lines were close and Witness G was shot behind ABiH lines 922 g The allegations about the police canteen soldiers shooting and machine guns with regard to Scheduled Sniping Incident 9 923 h The allegation that Witness G’s testimony and body position show he could not have been hit from SRK lines 924 304 Therefore because these arguments are mere repetitions of arguments made at trial this subground of appeal is dismissed 7 Allegations that the Trial Chamber accepted incredible or unreliable evidence 305 For these allegations the Appeals Chamber recalls the test to be applied Trial Chambers are best placed to hear assess and weigh the evidence including witness testimonies presented at trial Whether a Trial Chamber will rely on single witness testimony as proof of a material fact will depend on various factors that have to be assessed in the circumstances of each case In a similar vein it is for a Trial Chamber to consider whether a witness is reliable and whether evidence presented is credible The Appeals Chamber therefore has to give a margin of deference to the Trial Chamber’s evaluation of the evidence presented at trial The Appeals Chamber may overturn the Trial Chamber’s finding of fact only where the evidence relied on could not have been accepted by any reasonable tribunal or where the evaluation of the evidence is wholly erroneous 925 918 Defence Appeal Brief para 310 see Trial Judgement para 288 Defence Appeal Brief para 330 see Trial Judgement para 320 920 Defence Appeal Brief para 360 see Trial Judgement para 355 921 Defence Appeal Brief para 381 see Trial Judgement para 378 fn 1264 922 Defence Appeal Brief para 458 see Trial Judgement para 551 923 Defence Appeal Brief para 462 see Trial Judgement paras 552-555 924 Defence Appeal Brief para 459 see Trial Judgement para 550 925 Aleksovski Appeal Judgement para 63 footnotes omitted 919 131 Case No IT-98-29-A 30 November 2006 306 In a number of instances Gali alleges that the Trial Chamber accepted unreliable or incredible evidence but fails to show that no reasonable tribunal would have accepted that evidence as reliable or that its evaluation of the evidence was wholly erroneous Included in this category are a Allegations that witnesses to sniping and shelling incidents are incredible and unreliable 926 b Allegations that evidence given by some journalists should not be believed because it was “in function of the media war” and they could not support their allegations with photographs 927 c Allegations that witness testimony about where they were shot is not sufficiently precise to be admitted 928 d Attacks on the credibility of photographs submitted by Witness Ashton 929 e Allegations that no conclusion can be made based on the contradictory testimony of Witnesses Sal in and Maljanovi and that the witnesses were unreliable 930 f The statement that the Trial Chamber erred in disagreeing with the conclusions of Witness Vilici with regard to shelling in Alipa ino Polje931 and Dobrinja 932 g The allegation that the Trial Chamber should not have admitted the testimony of Witness Had i 933 h The contention that the Trial Chamber should not have accepted allegations of witnesses that soldiers continued to fire on a Dobrinja sniper victim 934 i The allegation that Witnesses Hafizovi Omerovi A E “and others” testifying to shelling in Dobrinja were unreliable and incorrect 935 926 Defence Appeal Brief para 255 Defence Appeal Brief paras 266 336 928 Defence Appeal Brief para 267 929 Defence Appeal Brief para 287 fn 228 930 Defence Appeal Brief paras 322-323 931 Defence Appeal Brief paras 343-344 932 Defence Appeal Brief paras 379 381 404 933 Defence Appeal Brief para 352 934 Defence Appeal Brief para 360 935 Defence Appeal Brief para 376 927 132 Case No IT-98-29-A 30 November 2006 j The allegation that the medical documentation presented in support of Scheduled Shelling Incident 1 was incomplete and unacceptable 936 k Complaints that the Trial Chamber accepted UNMO evidence over Witness Vilici ’s evidence with regard to Dobrinja shelling incidents 937 l The allegation that the Trial Chamber accepted evidence from Witness Kundo about Scheduled Sniping Incident 16 that was inconsistent and contradictory to her husband's testimony 938 m Vague attacks on the “impressions of certain witnesses who even in their testimonies do not have grounds for making any factual findings” with regard to the crime of terror against the civilian population 939 n The contention that the Trial Chamber should not have accepted the evidence of Ewa Tabeau regarding the number of civilians killed or injured because the Defence’s witness showed that Tabeau’s arguments were unacceptable 940 307 For all of the above contentions the Appeals Chamber finds that Galić has failed to discharge his duty to demonstrate that no reasonable trier of fact could have accepted the evidence relied upon This sub-ground of appeal is dismissed 8 Allegations contrary to evidence experience or common sense 308 All allegations of error require that they be sensible logical and not contradictory to any uncontradicted evidence Where faced with allegations that do not conform to these requirements the Appeals Chamber will dismiss them without further discussion 309 Included in this category are a The contention that the loader in Scheduled Sniping Incident 15 was hit accidentally because a large number of bullets was fired at it 941 Yet the fact that a large number of bullets hit the loader makes it more likely that it was targeted deliberately not less 936 Defence Appeal Brief para 380 Defence Appeal Brief para 388 938 Defence Appeal Brief paras 411-412 939 Defence Appeal Brief para 472 940 Defence Appeal Brief para 473 941 Defence Appeal Brief para 301 937 133 Case No IT-98-29-A 30 November 2006 b The contention that the existence of military facilities halfway between SRK lines and the high-rise apartment of Witness Mukanovi meant that he could not have been deliberately targeted 942 A civilian can be deliberately targeted regardless of what else there is in his vicinity c The contention that where two civilians are together and only one was shot as in Scheduled Sniping Incident 25 that cannot have been targeted 943 A soldier could quite easily decide to shoot only one person or may only have enough time or ammunition to shoot one d The contention that there was fighting at the time of Scheduled Sniping Incident 25 because witnesses were warned of firing in the area 944 What Galić disingenuously ignores is that the firing they were warned of was sniping 945 e The contention that if a civilian on her own was shot by a bullet ricocheting off the concrete around her that indicates that she was not deliberately targeted 946 If a civilian is the only likely target around a ricochet indicates rather that she was targeted deliberately but inaccurately f The contention that if shelling forces could not see the parking lot hit in Scheduled Shelling Incident 1 that indicates the shelling could not have been an example of indiscriminate firing 947 Shelling towards an area that one cannot see is certainly an example of indiscriminate firing because there has by definition been no discrimination between different potential targets g The contention that the establishment of a line of sight can only be determined on the basis of on-site inspection or from a photograph taken from the firing position 948 A line of sight could be determined by any number of things including for example witness testimony or a detailed topographical map 310 Therefore because these allegations lack logic or sense this subground of appeal is dismissed 942 Defence Appeal Brief para 308 Defence Appeal Brief para 329 fn 278 944 Defence Appeal Brief para 331 945 Trial Judgement para 320 946 Defence Appeal Brief para 366 947 Defence Appeal Brief para 383 948 Defence Appeal Brief para 439 943 134 Case No IT-98-29-A 30 November 2006 9 Allegations based on new evidence 311 The Appeals Chamber can rule based only on the evidence before it which is the combination of that evidence found in the trial record and any new evidence admitted by the Appeals Chamber pursuant to Rule 115 of the Rules Galić brought six motions under Rule 115 to admit new evidence All six were rejected 949 Therefore the Appeals Chamber in deciding this appeal will consider only evidence that is part of the trial record Consequently any allegation made by Galić that are based on new evidence – including factual allegations for which he does not give precise citations and that do not appear clearly in the Trial Judgement – will be dismissed without further discussion 950 312 Included in this category are contentions that a SRK members did not have positions in or near Pr ulje house 951 b Shells frequently dropped short because of unskilled crews and weather conditions 952 c The photographs on which the Trial Chamber concluded that Scheduled Sniping Incident 6 originated from the Orthodox Church were not taken from the spot where the victim was standing 953 d The ABiH used forced labour on the front line 954 e Most of the people around the well hit in Scheduled Shelling Incident 2 were soldiers 955 f All victims killed beneath picasta Stijena were the victims of stray or ricocheting bullets 956 g @u was not a civilian zone 957 949 See Procedural Background Annex A The onus of looking through the record to find support for allegations of error falls on Galić not the Appeals Chamber 951 Defence Appeal Brief para 312 952 Defence Appeal Brief para 345 953 Defence Appeal Brief para 355 954 Defence Appeal Brief fn 331 955 Defence Appeal Brief para 394 956 Defence Appeal Brief para 446 957 Defence Appeal Brief fn 400 950 135 Case No IT-98-29-A 30 November 2006 313 Therefore because these allegations rely on evidence that was never properly admitted before either the Trial Chamber or the Appeals Chamber this subground of appeal is dismissed C Specific Incidents 1 Markale Market 314 With regard to the Markale Market shelling Galić makes nine specific allegations a The Trial Chamber was wrong to conclude that the bearing of the shell was 18 degrees because one of the UN experts thought the bearing was 25 degrees and the Trial Chamber is “not an expert” able to determine between different technical opinions 958 b The Trial Chamber was wrong to determine that the angle of descent of the shell was about 65 degrees because two UN experts thought the angle was significantly different and the Trial Chamber did not clearly explain why it rejected other calculations 959 Also Gali claims there was no way to tell how far the shell penetrated the ground an essential factor in determining the angle of descent 960 c One cannot determine how deep a shell embeds itself into the ground without knowing the exact composition of the ground 961 d The Trial Chamber erroneously determined that the depth of the crater was 10 cm because one witness said the margin of error in measuring the crater was 50% and in any event the figure is meaningless without exact knowledge of the ground’s composition 962 e The Trial Chamber should not have accepted Witness AF’s testimony because he lied to the Trial Chamber about the location of ABiH forces 963 f Witness AK-1’s testimony which the Trial Chamber found reliable to indicate what direction the shells came from also established that the shell was fired at a very short 958 Defence Appeal Brief para 424 fn 352 Defence Appeal Brief para 424 fn 353 960 Defence Appeal Brief para 424 fns 354-355 961 Defence Appeal Brief para 424 fns 354-355 962 Defence Appeal Brief para 424 963 Defence Appeal Brief para 425 fn 357 959 136 Case No IT-98-29-A 30 November 2006 distance from the market not from the distant SRK lines but the Trial Chamber incorrectly failed to come to this conclusion 964 g The Trial Chamber was wrong to conclude that the SRK could have prerecorded the market’s position from previous shellings over the previous four months because changing conditions mean that coordinates cannot remain the same for any length of time 965 An undisputed Prosecution witness claimed that prerecorded data can only be used for two hours and there had been no shelling in the previous two hours 966 Further the market was too small a target to be deliberately hit from such a great distance 967 h The Trial Chamber relied on Witness AD’s testimony in order to conclude that the market could have been deliberately targeted but it erred in failing to accept his testimony that SRK soldiers refused to execute orders which could have been interpreted as illegal 968 i The tailfin produced as evidence cannot have been the actual tailfin because the fragments of shrapnel were never produced 969 315 The testimony and the allegations surrounding the Markale Market incident are extremely complicated with a number of technical factors coming into play experts providing different conclusions and uncertainty as to the accuracy of the different findings The Trial Chamber received into evidence inter alia a report produced by a Bosnian expert three days after the shelling based on analysis conducted on the day of the shelling Sabljica Ballistic Report 970 a report produced by a Bosnian expert two days after the shelling based on analysis conducted the day after the shelling Ze evi Ballistic Report 971 a report produced by UNPROFOR ten days after the shelling which included ten different analyses made by eight different UN officials at different times after the shelling UNPROFOR Report 972 a report produced by a defence expert eight years after the shelling Vili i Shelling Report 973 and testimony from both Bosnian experts 974 the 964 Defence Appeal Brief para 425 fn 359 Defence Appeal Brief para 426 fn 362 966 Defence Appeal Brief para 426 967 Defence Appeal Brief fn 362 968 Defence Appeal Brief fn 362 969 Defence Appeal Brief para 427 970 P2309 A1 971 P3276 1 972 P2261 973 D1917 974 Sabljica T 5116-5433 Ze evi T 10283-10370 965 137 Case No IT-98-29-A 30 November 2006 Defence expert 975 and various UN officials with varying knowledge of the UN’s different analyses 976 316 Some of Gali ’s allegations of error can be easily dismissed a As to the composition of the ground Ze evi testified that the ground was composed of a thin layer of asphalt above sand rocks gravel and stones 977 No other contradictory evidence has emerged Gali has not shown either why that finding is incorrect or why more detailed analysis is necessary b Matters of credibility are largely up to the Trial Chamber in that respect Gali has failed to show that Witness AF’s testimony as to the presence of ABiH troops is so unreliable that his testimony cannot be accepted on any other matter c That Witness AK-1 heard the sound of the shell does not necessarily lead to the conclusion that the shell came from nearby evidence adduced at trial demonstrated that differing conditions could have made the shell audible from different places 978 d A Trial Chamber’s acceptance of one fact a witness testifies to does not oblige it to accept all of the witnesses testimony therefore the Trial Chamber’s acceptance of only parts of witness AD’s testimony was not error e Whether the shrapnel was produced is not relevant to whether the tailfin entered into evidence was the actual tailfin the Trial Chamber determined from the evidence that it was and Gali has presented no reason why that determination was erroneous 979 317 Therefore the Appeals Chamber is left with arguments about the bearing of the shell the angle of descent the depth of the crater and the possibility of targeting the market The first three concern where the shell came from the last one whether it was sent deliberately 318 Determination of where a shell comes from is an extremely difficult process To be precise the bearing angle of descent and charge must all be known Working ex post these data are obviously rarely available and have to be reconstructed as in this case from data gathered at the site of impact Data from the site would include inter alia the depth of the crater created by the shell the shape size and location of the disturbance of the ground around the crater any tailfins 975 Vili i T 20182-20607 See e g Witness Hamill T 6059-6233 977 Trial Judgement para 443 978 See Trial Judgement para 454 979 See Trial Judgement para 463 fns 1630 1669 976 138 Case No IT-98-29-A 30 November 2006 igniters shrapnel or other objects recovered from the explosion and the surrounding topography both close and far But as is apparent from the evidence discussed by the Trial Chamber not all of these data are susceptible to precise measurement and even when they are they can lead to a range of possible solutions 319 The task of reconstruction becomes more difficult when a number of experts come to different conclusions The Trial Chamber received five different values for the bearing of the shell 980 six different values for its angle of descent 981 three different measurements of the crater depth 982 and three different estimates of the distance the shell travelled 983 Further with one or two exceptions these data were ranges not numbers 320 Nonetheless some of the imprecisions in this case are less important than others The arguments regarding the shell’s bearing can be dismissed without difficulty The Trial Chamber may have erred in finding that the bearing was 18 degrees 984 There was another opinion accepted by the UNPROFOR Report as equally reliable that the bearing may have been as high as 23 6 degrees even 25 degrees 985 However such an error would not have caused a miscarriage of justice because the possible ranges all fit within a north-north-easterly direction pointing to roughly the same configuration of ABiH and SRK lines 986 In that direction the Markale market was 2 300m from the ABiH confrontation line and 2 600m from the SRK confrontation line 987 Therefore the salient inquiry is how far the shell travelled Three factors are at play in this relative altitude which is undisputed charges which are disputed and angle of descent which is heavily disputed 321 It is undisputed that the ground rises about 400m above the market towards the confrontation lines from where it rises another 100m to 250m – so the shell fell at least 400m 988 The charge on the mortar can only be determined if at all from the depth of the crater and tunnel created by the shell As shown below the Trial Chamber’s findings in this regard were entirely reasonable and will not be disturbed The angle of descent thus becomes pivotal 989 On this issue 980 See Trial Judgement para 465 See Trial Judgement paras 443 467-468 982 See Trial Judgement paras 484-485 983 See Trial Judgement paras 443-444 471 984 Trial Judgement para 465 985 Trial Judgement paras 445 465 Another expert fixed the bearing at 35 degrees Trial Judgement para 445 However he used an unconventional method and his calculation was rejected by the UNPROFOR Report as being unreliable UNPROFOR report Annex C Galić has not relied on that witness’s conclusion in his appeal Therefore the applicable range of bearings that must be considered is 18 to 25 degrees 986 See D1790-D1796 maps submitted into evidence by the Defence 987 Trial Judgement para 455 988 See Trial Judgement para 479 989 Schematically the angle of descent the bearing and the speed are necessary to determine the shell’s origin the angle of descent the crater the altitude difference and the charge are all necessary to determine its speed Combinations or particular values of these possible numbers can rule out or indicate certain possibilities for example a very shallow crater suggests either a low charge a shallow angle of descent or both 981 139 Case No IT-98-29-A 30 November 2006 the Appeals Chamber will not reverse or revise the Trial Chamber’s findings despite certain shortcomings in the Trial Chamber’s analysis 322 The greater the angle of descent the closer the shell was fired from Because ABiH lines were closer to the market if the angle was particularly high the shelling had to come from ABiH lines if the angle was particularly low the shelling had to come from SRK lines Within a particular range it could have come from either territory depending on the number of charges used Judge Nieto Navia’s dissent gave an illustration if a 120mm shell that hits the ground at 235m s has an angle of descent of 55 6 degrees it will have been fired from 6 464m behind SRK lines if the angle was 86 2 degrees and it hit the ground at the same speed it will have been fired from 1 168m well within the ABiH lines 990 But a change in other factors can also produce large effects If a 120mm shell falling at an 85 7 degrees angle hit the ground at 179m s it will only have travelled 680m 991 323 Partly because of the surroundings of the market it is undisputed that the angle of descent was at least 50 degrees 992 But the upper band was the subject of much dispute and great uncertainty Two UN inspectors set the maximum angle at 62 degrees 993 the Defence expert set it at 62 5 degrees 994 and the Bosnian inspector fixed the angle at 60 degrees with a 5 degrees margin of error 995 But Major Russell another UN inspector calculated the angle at 67-73 degrees 996 The UNPROFOR report having regard to numerous UN analyses some of which it rejected for faulty methodology said it was “not possible to estimate with any acceptable degree of accuracy the angle of descent” 997 UNPROFOR could only conclude that “the possible distance of origin of fire … is between 300 and 5 551 metres from the point of detonation and there was insufficient physical evidence to prove that one party or the other fired the mortar bomb The mortar bomb in question could have been fired by either side” 998 It could not impute reliability to many of the calculations because they either used unreliable methods or were taken too long after the event 999 324 The Trial Chamber’s discussion of the UNPROFOR Report is not entirely accurate The Trial Chamber stated that “ t he Majority understands that the UN Report endorsed the findings 990 Separate and Partially Dissenting Opinion para 74 Vili i Shelling Report tbl 2 992 See Ze evi T 10347 The Defence’s own expert calculated the shell’s angle of descent to be between 55 6 and 62 5 degrees Trial Judgement para 451 993 Trial Judgement para 446 994 Trial Judgement para 451 995 Trial Judgement para 445 996 Trial Judgement para 445 997 UNPROFOR Report p 4 998 UNPROFOR Report p 4 999 UNPROFOR Report Annex C 991 140 Case No IT-98-29-A 30 November 2006 made by Khan1000 and Hamill1001 although it cautioned that on the basis of the condition of the crater it was not possible to estimate with any ‘acceptable degree of accuracy’ the angle of descent” 1002 Calling the UNPROFOR Report an endorsement is inaccurate the report discussed Khan and Hamill’s findings at greater length than the other calculations and to be sure rejected calculations made by Verdy and Frebat the French UN battalion 1003 but it did not endorse them and concluded that there was a great deal of uncertainty The Trial Chamber also said the UNPROFOR Report ignored Russell’s findings 1004 but that is not correct UNPROFOR included Russell’s findings in a table of the different measurements and included it in the results “based on … conventional methods of crater analysis” 1005 325 The Trial Chamber concluded “On the basis of the evidence presented the Majority finds that the shell’s angle of descent was approximately 60 degrees Allowing for a margin of error of 5 degrees the majority finds that the angle of descent … was not greater than 65 degrees” 1006 The Trial Chamber’s language could have been clearer At first glance it appears that the Trial Chamber found that the shell fell at a particular angle whereas all the experts found only ranges 1007 and then arbitrarily picked a particular margin of error perhaps because one local expert had used it 1008 However the Appeals Chamber considers that the Trial Chamber’s language obscures the fact that the Trial Chamber in using both a single number and a margin of error did in fact find that the angle of descent fell within a range of possibilities a range which was as wide as any of the ranges attested to by the experts 326 Neither the Trial Chamber’s slight misreading of the UNPROFOR Report nor its mildly confusing language render its decision unreasonable Had the UNPROFOR report been the only evidence the Trial Chamber had to consider an inaccurate analysis of the report may well have proved fatal but an examination of the trial record shows that the Trial Chamber had much more evidence before it than simply the UNPROFOR report it also had the Sablijca report the Ze evi report the Vili i report tendered by the Defence and testimony from Bosnian experts members of the UNPROFOR team and Vili i 1000 56-62 degrees 53-62 degrees 1002 Trial Judgement para 468 1003 UNPROFOR Report Annex C 1004 Trial Judgement para 468 1005 UNPROFOR Report Annex C 1006 Trial Judgement para 469 1007 Defence Appeal Brief fn 352 1008 See Trial Judgement para 443 1001 141 Case No IT-98-29-A 30 November 2006 327 The Ze evi report based on measurements taken the day after the shelling came up with a range of 55-65 degrees 1009 That was close to the range found by Khan and Hamill 1010 and the Trial Chamber ended up using those figures 1011 The Vili i report using calculations made some years later and based on Sabljica’s measurements and photographs of the area of impact came up with a range of 55 6-62 5 degrees 1012 This range fits entirely within the Trial Chamber’s conclusion at the top end It must be remembered that the greater the angle the more likely the shell was to come from behind SRK lines If the Trial Chamber made an error at the lower end of the calculations that error would be favourable to Gali Thus it cannot be the basis for reversing or revising the Trial Chamber’s findings in favour of Galić Testimony from Witnesses Hamill Vili i and Ze evi all gave further explanations for how they arrived at their figures while Russell never testified Therefore there was much more evidence available to the Trial Chamber than only the UNPROFOR report to enable its finding that the angle was 55 to 65 degrees 328 As to Russell’s outlying numbers it was unfortunate that the Trial Chamber did not provide a clear explanation why it rejected them However the testimony of Hamill provided justification for the failure to accept Russell’s conclusion According to Hamill the UNPROFOR team had no knowledge of Russell’s methods 1013 Neither party called Russell as a witness so no explanation was available to the Trial Chamber Without knowing how Russell arrived at his results the Trial Chamber acted reasonably in disregarding those calculations in favour of numerous other sets of calculations with known methodologies 1014 The fact that Russell’s calculations were outliers while not enough in itself to justify ignoring his results adds weight to the reasonableness of the Trial Chamber’s decision Of course it might have been clearer had the Trial Chamber better explained why it disregarded Russell’s conclusions but a Trial Chamber does not have to explain every decision it makes as long as the decision having a view to the evidence is reasonable 1015 329 Therefore the Trial Chamber’s findings as to the angle of descent are not unreasonable and will not be overturned 330 But the bearing and the angle of descent alone are not enough The type or amount of charges is also important in order to determine speed and thus how far the shell travelled As the UNPROFOR Report noted a mortar can be fired with six different charges so even if the angle of 1009 Trial Judgement para 443 Trial Judgement para 446 1011 Trial Judgement para 468 1012 Trial Judgement para 451 1013 Hamill T 6096 1014 Hamill also testified to the “remarkable consistency across the results despite the fact that each of the experts did their tests independently of the other and using different methods” T 6194 1015 See Kvočka et al Appeal Judgement para 23 1010 142 Case No IT-98-29-A 30 November 2006 descent and bearing are known perfectly a mortar can have come from six locations 1016 But the amount of charge can be reconstructed To determine the charge one needs to determine the speed at which the shell was travelling when it hit the ground and the best evidence for this comes from the depth of the crater it makes and the composition of the ground 1017 331 The composition of the ground was established by one uncontradicted piece of evidence which Gali has shown no reason to doubt 1018 There is however some confusion with regard to the depth of the crater Prosecution witness Sabljica on the scene shortly after the shelling measured that depth at 9 cm 1019 Ze evi based on his analysis the day after said the shell penetrated the ground 20-25 cm 1020 one UN expert measured it at 11 cm 1021 The Trial Chamber stated that the 9cm and the 20-25 cm were two different measures “the crater caused by the explosion” and “the depth of the tunnel of the tail-fin and the depth of the crater … together” respectively 1022 The Trial Chamber used only the 9 cm figure in its calculations 1023 Judge Nieto-Navia used in his dissent only the 20-25 cm figure 1024 In his testimony Ze evi suggested that the crater and the tunnel were different things 1025 332 This confusion is lamentable but ultimately not fatal It appears that the total depth of penetration is the salient figure to determine the speed on impact Ze evi ’s estimate of 20-25 cm is the only estimate for this number and it has not been reliably challenged Gali says it is unreliable because it was taken after the tunnel had been disturbed 1026 However in this respect the Trial Chamber had regard to all the evidence about the ground including work done on the tunnel the previous day and Gali has not shown that no reasonable trier of fact could have found Ze evi ’s uncontradicted testimony as to penetration reliable Therefore the Trial Chamber’s finding – based on the depth of penetration the type of ground and analysis presented by both Prosecution and Defence witnesses – that the shell was fired with a charge of at least 0 3 1027 was a reasonable one 1016 UNPROFOR Report Annex C Trial Judgement paras 484-489 1018 See Trial Judgement para 443 1019 Trial Judgement para 442 1020 Trial Judgement para 443 1021 Trial Judgement para 447 1022 Trial Judgement para 484 1023 Trial Judgement paras 484-486 1024 Separate and Partially Dissenting Opinion paras 83-84 1025 Ze evi T 10321 “The crater doesn't – is not caused by the remnants of the stabiliser but by the explosion and the hole in which the stabiliser was is quite a different thing” 1026 Defence Appeal Brief para 424 He also says the margin of error was too great but he has misread 200-250mm as 10-15cm 1027 Trial Judgement para 490 1017 143 Case No IT-98-29-A 30 November 2006 333 As the Trial Chamber pointed out a shell fired at 0 3 charges with a difference in altitude of at least 400 m1028 and an angle of descent of 65 degrees would have travelled 3600 m placing its origin well within SRK lines 1029 Therefore the Trial Chamber’s conclusion that the shell was fired from behind SRK lines is not unreasonable and will not be overturned 334 As to the deliberateness of the targeting Gali argues that the market could not have been deliberately targeted because reaching such a small target from more than 2 600 m away would be “if not nearly impossible extremely lucky” 1030 he further argues that prerecorded data about a target’s location can only be successfully used within two hours so shelling in the previous four months could have been of no assistance 1031 The Appeals Chamber notes that the Trial Chamber’s reasoning in this regard was sparse and somewhat unclear 1032 but it finds that even if the Trial Chamber erred in determining that the market was deliberately targeted that error was not prejudicial to Gali because civilians were deliberately targeted whether or not the SRK was aiming at the market 335 Witness Hamill relied on by Gali testified both to the limited time in which prerecorded data could be used and to the difficulty of hitting a relatively small target such as the market from a great distance 1033 However Hamill also testified that an experienced mortar crew could reach to within 200 m or 300 m of their target on the very first shot 1034 The Trial Chamber heard evidence that the closest military target to the market was 300 m away 1035 Therefore whether the SRK was aiming for the market itself or for some other target within the surrounding 300 m it was aiming for a target within a civilian area and this shelling incident was thus an example of shelling that deliberately targeted civilians The Trial Chamber was incorrect to find that the shell was deliberately aimed at Markale market but correct to find that it was deliberately aimed at civilians and its conclusions will not be overturned 2 Ko evo Hospital 336 Gali challenges the Trial Chamber’s findings that the shelling of Ko evo Hospital constituted “examples of the campaign of attacks on civilians”1036 because SRK forces fired on the 1028 The change in altitude from the market to the ABiH confrontation line A greater change in altitude would cause a longer flight 1029 Trial Judgement para 488 A lower angle of descent as posited by most of the experts would have travelled from even further behind SRK lines 1030 Defence Appeal Brief fn 362 1031 Defence Appeal Brief para 426 1032 See Trial Judgement para 494 1033 Hamill T 6193 1034 Hamill T 6225 1035 Trial Judgement para 456 1036 Trial Judgement para 509 144 Case No IT-98-29-A 30 November 2006 area of the hospital – and not in fact the hospital itself – “only as a response to ABiH military activities from that area” 1037 337 Galić makes two separate contentions The first is that SRK forces did not shell the hospital itself But shelling of the hospital was established by a good deal of evidence which Gali has in no way refuted 1038 This contention is accordingly dismissed The Appeals Chamber takes Gali ’s second contention to mean that it was not unlawful for SRK forces to fire at the hospital because ABiH forces were using it as a military base an argument which will now be considered 1039 338 It is clear from the Trial Record that the SRK was fired at from the hospital grounds and that the SRK fired on the hospital grounds and building 1040 The Trial Chamber recounted the testimonies of ten witnesses and a number of UN reports testifying to 13 specific instances – along with an acknowledgement that there were numerous other instances – where the hospital or its grounds were shelled between October 1992 and January 1994 1041 It also recounted the testimonies of 12 witnesses describing 14 specific instances – again with an acknowledgement that there were other instances – where weapons were fired from the hospital grounds towards SRK forces or military vehicles were seen in the hospital grounds in 1992 and 1993 1042 339 A number of UN witnesses testified to specific incidents where SRK fire on the hospital came in direct response to firing from the hospital grounds 1043 One said the hospital was “often hit in the context of return fire” 1044 Conversely another UN witness reported that the SRK initiated the firing and another witness testified to attacks on the hospital that responded solely to normal hospital activity 1045 340 Given the evidence the Trial Chamber was clearly correct to find both that the Ko evo hospital “was regularly targeted during the Indictment Period by the SRK” and that “ABiH mortar fire originated from the hospital grounds or from its vicinity1046 and that these actions may have provoked SRK counter-fire” 1047 But its conclusion that the firing on the Ko evo hospital buildings 1037 Defence Appeal Brief para 429 See Trial Judgement paras 498-503 1039 Although this contention posits a legal rather than a factual error the Appeals Chamber will nevertheless consider it in this section 1040 See Trial Judgement paras 498-508 1041 Trial Judgement paras 498-503 1042 Trial Judgement paras 504-508 The Trial Chamber also heard one witness testify to damage caused to the hospital by ABiH forces Trial Judgement fn 1722 1043 Trial Judgement paras 504-506 508 1044 Trial Judgement para 508 1045 Trial Judgement para 508 1046 Most of the evidence referred to fire from the hospital grounds itself See Trial Judgement paras 504-508 1047 Trial Judgement para 509 1038 145 Case No IT-98-29-A 30 November 2006 “was certainly not aimed at any possible military target”1048 is partially incorrect If the hospital whether the building or the grounds was used as a base to fire at SRK forces then the hospital was at least temporarily a military target As the ICRC Commentary to Additional Protocol I to the Geneva Conventions states “If the medical unit is used to commit acts which are harmful to the enemy it actually becomes a military objective which can legitimately be attacked and even destroyed” 1049 341 It is important to establish exactly what restrictions international humanitarian law establishes as set out in the Fourth Geneva Convention and Additional Protocols thereto regarding attacks on hospitals All three instruments state that hospitals shall not be the object of attack 1050 However all three also state – with slightly different wording – that hospitals lose their protection if they are used for military purposes The Fourth Geneva Convention states that the protection ceases if “they are used to commit outside their humanitarian duties acts harmful to the enemy” 1051 Additional Protocol I if “they are used to commit outside their humanitarian function acts harmful to the enemy” 1052 and Additional Protocol II if “they are used to commit hostile acts outside their humanitarian function” 1053 342 The Fourth Geneva Convention and the two Additional Protocols along with the ICRC Commentary give examples of actions that result in the loss of protection under international humanitarian law for hospitals According to the ICRC Commentary these include • “ T he use of a hospital as a shelter for able-bodied combatants or fugitives” 1054 • The use of a hospital “as an arms or ammunition dump” 1055 • The use of a hospital “as a military observation post” 1056 • “ T he deliberate siting of a medical unit in a position where it would impede an enemy attack” 1057 and • Heavy fire from every window of a hospital meeting an approaching body of troops 1058 1048 Trial Judgement para 509 ICRC Commentary Additional Protocols para 555 1050 See Geneva Convention IV art 18 Additional Protocol I art 12 Additional Protocol II art 11 1051 Geneva Convention IV art 19 1052 Additional Protocol I art 13 1053 Additional Protocol II art 11 1054 ICRC Commentary Additional Protocols para 551 1055 ICRC Commentary Additional Protocols para 551 1056 ICRC Commentary Additional Protocols para 551 1057 ICRC Commentary Additional Protocols para 551 1058 ICRC Commentary Additional Protocols para 4728 1049 146 Case No IT-98-29-A 30 November 2006 343 According to Geneva Convention IV Additional Protocol I and the ICRC Commentary these actions do not lose protection • Nursing sick or wounded members of the armed forces 1059 • “The presence of small arms and ammunition taken from such combatants which have not yet been handed to the proper service” 1060 • “ T he personnel of the unit are equipped with light individual weapons for their own defence or for that of the wounded and sick in their charge” 1061 • “ T he unit is guarded by a picket or by sentries or by an escort” 1062 • “ M embers of the armed forces or other combatants are in the unit for medical reasons” 1063 • “ A mobile medical unit accidentally breaks down while it is being moved in accordance with its humanitarian function and thereby obstructs a crossroads of military importance” 1064 and • “ R adiation emitted by X-ray apparatus … interfere s with the transmission or reception of wireless messages at a military location or with the working of a radar unit ”1065 344 Therefore where a hospital is used for one of the hostile purposes articulated above or for an analogous purpose or for a purpose even more obviously hostile the hospital loses protection and becomes a legitimate military objective while used for that purpose 1066 However that loss of protection is not instantaneous a warning period is required Additional Protocols I and II have the same wording “Protection may however cease only after a warning has been given setting whenever appropriate a reasonable time-limit and after such warning has remained unheeded ”1067 345 Though it does not change the legal analysis it should also be noted that the parties to the conflict specifically included a version of these provisions in the 22 May Agreement that 1059 Geneva Convention IV Article 19 Geneva Convention IV Article 19 1061 Additional Protocol I Article 13 1062 Additional Protocol I Article 13 1063 Additional Protocol I Article 13 1064 ICRC Commentary Additional Protocols para 552 1065 ICRC Commentary Additional Protocols para 552 1066 Cf Additional Protocol I Article 51 3 “Civilians shall enjoy … protection … unless and for such time as they take a direct part in hostilities ” emphasis added ICRC Commentary Additional Protocols para 1942 “Thus a civilian who takes part in armed combat either individually or as part of a group thereby becomes a legitimate target though only for as long as he takes part in hostilities ” emphasis added 1067 Additional Protocol I art 13 1 Additional Protocol I Article 11 2 The Fourth Geneva Convention’s wording is slightly different but the practical effects of the difference are nugatory “Protection may however cease only after due warning has been given naming in all appropriate cases a reasonable time limit and after such warning has remained unheeded ” Geneva Convention IV art 19 1060 147 Case No IT-98-29-A 30 November 2006 “Hospitals and other units including medical transportation may in no circumstances be attacked they shall at all times be respected and protected They may not be used to shield combatants military objectives or operations from attacks The protection shall not cease unless they are used to commit military acts However the protection may only cease after due warning and a reasonable time limit to cease military activities ”1068 The key difference in the agreement is the statement that hospitals shall not be used to commit “military” rather than “hostile” or “harmful” acts In context though these words have very similar effects 346 The law is thus clear a hospital becomes a legitimate target when used for hostile or harmful acts unrelated to its humanitarian function but the opposing party must give warning before it attacks 1069 In this case the hospital was used as a base to fire mortars at the SRK forces 1070 Therefore the Trial Chamber erred in law in determining that fire on the hospital was “not aimed at any possible military target” 1071 because fire from the hospital turned it into a target At the same time however military activity does not permanently turn a protected facility into a legitimate military target It remains a legitimate military target only as long as it is reasonably necessary for the opposing side to respond to the military activity 1072 Additionally an attack must be aimed at the military objects in or around the facility so only weaponry reasonably necessary for that purpose can be used The Appeals Chamber must now review the Trial Chamber’s factual findings in light of the correct legal standard 1073 347 As noted the Trial Chamber heard a good deal of evidence about attacks from both sides In some instances evidence demonstrates that the SRK fired the type of weaponry ordinarily used against mortars within a reasonable time after there was mortar fire from the hospital 1074 The Trial Chamber was thus incorrect not to find that a number of the SRK attacks were attacks on legitimate military targets However there is also evidence revealing that some of the SRK attacks either 1068 22 May Agreement para 2 2 The Trial Chamber did not entirely ignore this In a footnote towards the end of its discussion on the hospital it wrote “Although using hospitals or medical facilities to commit military acts is not in accordance with international humanitarian law before these installations loose the protection to which they are entitled the attacking side should provide a prior warning to cease such use and provide reasonable time to comply therewith If the medical facility is to be attacked appropriate precautions should be taken to spare civilians the hospital staff and the medical installations ” Trial Judgement footnote 1747 It provided no citation and the second sentence is unclear as to who is to take the precautions The ICRC Commentaries indicate that the onus is on the side using the hospital illegitimately 1070 The Trial Chamber found that the mortars came from “the hospital grounds or its vicinity” Trial Judgement para 509 But the evidence it discussed overwhelmingly described firing from the hospital grounds itself See Trial Judgement paras 504-506 1071 See Trial Judgement para 509 1072 Cf ICRC Commentary GC IV p 154 discussing time limits of warnings ICRC Commentary Additional Protocols para 4727 same 1073 Stakić Appeal Judgement para 9 Kvočka et al Appeal Judgement para 17 Kordi and erkez Appeal Judgement para 17 Blaškić Appeal Judgement para 15 1074 See Trial Judgement para 508 1069 148 Case No IT-98-29-A 30 November 2006 because of their timing or because of the weaponry deployed cannot be construed as attacks on a legitimate military target 348 First the Trial Chamber heard and accepted evidence from Jacques Kolp a UNPROFOR liaison officer that the SRK had fired on the hospital before there was ever any firing from it 1075 Adding strength to this testimony is the fact that the earliest dated attack on the hospital was October 1992 1076 while the earliest dated attack from the hospital was December 1992 1077 Another witness testified that fire on the hospital “often increased with the level of activity at the hospital vehicles arriving and leaving people being carried on stretchers from building to building” 1078 The Trial Chamber accepted this evidence and the Appeals Chamber sees no reason to reject it Therefore all this evidence demonstrates that on some occasions the SRK attacks on the hospital were not attacks against a legitimate military target but rather attacks on a protected facility that killed civilians and thus parts of the campaign of attacks on civilians 349 Further the Trial Chamber also discussed the battle damage assessment of Squadron Leader Harding a UN Military Observer 1079 Harding visited Ko evo Hospital on 30 December 1992 to identify how damage from the attacks had affected the hospital’s operation 1080 He found that the hospital had taken direct hits by 40 mm and 20 mm anti-aircraft artillery 1081 There was also much evidence of heavy artillery fire on the hospital 1082 None of this weaponry is of the type militaries use to take on mortars 1083 so attacks using those weapons were not attacks against the mortars but rather attacks on the hospital as a hospital 350 Finally the Trial Chamber also heard evidence that the Minister of Health of Republika Srpska told the Republika Srpska Assembly that if the “Hospital is to end up in the hands of the enemy I am for the destruction of the Ko evo Hospital so that the enemy has nowhere to go for medical help ”1084 Though the hospital was never destroyed this evinces a willingness to target the hospital even when there was no legitimate military purpose to doing so and is additional evidence lending credence to the conclusion beyond a reasonable doubt that the hospital was deliberately targeted 1075 See Trial Judgement para 508 See Trial Judgement para 498 1077 See Trial Judgement para 505 1078 See Trial Judgement para 508 1079 See Trial Judgement para 499 1080 Trial Judgement para 499 1081 Trial Judgement para 499 Other witnesses also discussed anti-aircraft fire hitting the hospital See Cutler T 8914 1082 See e g Trial Judgement para 499 1083 Harding T 4366-4367 Henneberry T 8668 1084 Trial Judgement para 502 1076 149 Case No IT-98-29-A 30 November 2006 351 Therefore when applying the correct standard of law the Appeals Chamber finds that some but not all of the attacks on the hospital by the SRK constituted examples of the campaign of attacks on civilians Other attacks were attacks on a legitimate military target The Trial Chamber was thus only partially incorrect and its conclusion is revised accordingly 352 For the foregoing reasons Galić’s seventeenth ground of appeal is dismissed 150 Case No IT-98-29-A 30 November 2006 XVI GROUND 18 GALIĆ’S CRIMINAL RESPONSIBILITY 353 Galić contends that the Trial Chamber gave a “one-sided incomplete and erroneous evaluation of the evidence” regarding his position role and criminal responsibility 1085 He points to numerous alleged errors of facts A Errors on general matters 354 Galić first claims that the Trial Chamber erred in holding that he was appointed commander of the SRK by the Minister of Defence on the basis of testimony of Prosecution’s Expert Witness Philipps According to him he was so appointed by Proclamation of the Presidency of the Republic of Srpska He argues that the erroneous conclusion of the Trial Chamber shows that Expert Witness Philipps cannot be considered reliable 1086 Second he argues that the Trial Chamber erroneously stated that there was no dispute among the parties as to the facts of the planning and execution of the military encirclement of Sarajevo when in fact he argued at trial that there was no encirclement but only a division of the city 1087 Third he contends that the Trial Judgement does not address his argument regarding his criminal responsibility under Article 7 1 of the Statute As a result of this omission he claims that it may be thought that he accepted the view of the Prosecution whereas in fact he challenges his criminal responsibility under Article 7 1 of the Statute 1088 The Prosecution does not respond to the first argument In response to the second argument it argues that Galić relied on a map produced by his military expert that establishes that with the exception of the airport and the tunnel underneath it there was indeed an encirclement of Sarajevo 1089 In response to the third argument it claims that Galić misinterpreted the Trial Judgement which in fact addresses his position on his criminal responsibility 1090 355 With regard to the first argument the Appeals Chamber finds that Galić does not explain how the question of which authority appointed him has any impact on his criminal responsibility The relevant and uncontested fact is that he assumed his duty as Commander of the SRK on 10 September 1992 1091 In fact with respect to the argument pertaining to the reliability of Expert Witness Phillips the Appeals Chamber notes that the reference in this part of the Trial Judgement to this witness’s testimony is used only to support the fact that Galić assumed his duty on that date and does not refer to the authority appointing him This part of Galić’s argument therefore fails 1085 Defence Appeal Brief para 484 Defence Appeal Brief para 485 1087 Defence Appeal Brief para 486 1088 Defence Appeal Brief paras 487-488 1089 Prosecution Response Brief para 17 1 1090 Prosecution Response Brief para 17 2 1091 Trial Judgement para 205 1086 151 Case No IT-98-29-A 30 November 2006 356 With regard to Galić’s second argument the Appeals Chamber notes that the characterisation of the situation surrounding Sarajevo as a “military encirclement” as opposed to a division of the city is not relevant for the alleged crimes in question 1092 The Trial Chamber used the term merely as a description of the relevant situation Galić was not convicted on the basis of an encirclement or otherwise of the city 357 With respect to Galić’s third argument that the Trial Chamber failed to consider that he challenged his criminal responsibility under Article 7 1 of the Statute the Appeals Chamber finds that Galić ignores that the Trial Chamber at the very beginning of its discussion on the effective command of Galić noted that the Defence argued that Galić “cannot be held criminally responsible for acts committed by his subordinates ”1093 Accordingly this third argument is dismissed B Effective command of SRK forces 358 Galić argues that there was no unlawful behaviour by his subordinates within the SRK 1094 He also claims that the SRK structure has limited relevance to the establishment of his criminal responsibility under Article 7 1 of the Statute1095 and that the Trial Chamber in evaluating the chain of command considered certain irrelevant factors in paragraph 617 of the Trial Judgement 1096 Galić further submits that there is other evidence contradicting these factors 1097 The Prosecution responds that the Trial Chamber was correct not to acknowledge Galić’s argument that there was no unlawful behaviour by his subordinates in the section in question as the Trial Chamber had previously determined that there was unlawful behaviour on the part of his subordinates and that it was part of a campaign 1098 As to the structure of the SRK the Prosecution submits that although Galić argues that there were “erroneous evaluations” of the evidence he does not actually dispute any of the evidence cited The Prosecution also claims that Galić’s criticisms of the evidence ignore the reason why the Trial Chamber cited the evidence 1099 359 In response to Galić’s allegation that there was no unlawful behaviour the Appeals Chamber notes that this section of the Trial Judgement relates solely to the criminal responsibility of Galić and is situated after the section of the Trial Judgement where the Trial Chamber found numerous instances of unlawful behaviour by SRK forces His allegation relating to this section of 1092 Trial Judgement para 609 “In itself that encirclement is not directly relevant to the charges of the Indictment ” Trial Judgement para 614 Whether Galić was in “effective command” was used by the Trial Chamber as one factor among others to infer that he was responsible for ordering the crimes proved at trial Trial Judgement para 171 1094 Defence Appeal Brief para 489 1095 Defence Appeal Brief para 490 1096 Defence Appeal Brief para 493 1097 Defence Appeal Brief paras 490-492 1098 Prosecution Response Brief para 17 3 1099 Prosecution Response Brief para 17 4 1093 152 Case No IT-98-29-A 30 November 2006 the Trial Judgement is therefore misplaced and Galić does not provide any argument to support it His argument therefore fails 360 As regards the relevance of the facts established in paragraph 617 of the Trial Judgement the Appeals Chamber notes that the precise facts contained in that paragraph relate to the professionalism and efficiency of the SRK soldiers Contrary to Galić’s argument this is clearly relevant for determinations relating to the chain of command as it concerns the quality of the information delivered to Galić and his ability to affect his subordinates’ behaviour 361 The Appeals Chamber considers that the arguments made by Galić concerning the evaluation of witness testimony either seek to replace the Trial Chamber’s interpretation of the evidence with his own 1100 or allege that the Trial Chamber cited the evidence in support of a different proposition than that for which it actually cited the evidence 1101 These arguments pertain to the Trial Chamber’s assessment of evidence and witness credibility The Appeals Chamber finds that Galić has not established that no reasonable trier of fact could have reached the same findings as the Trial Chamber did As such the arguments of Galić cannot be upheld C Reporting and monitoring systems of the SRK 362 Galić questions how he was able to control by personal monitoring the vast and deep front line arguing that control is exercised through the submission of reports of commanders and through briefings and maps He contends that he was kept informed only of significant matters involving the Corps not of all activities of individual units and that contrary to the findings of the Trial Chamber he could not have controlled everything at the same time In particular he argues that it does not follow from the presence of an established reporting system that he was informed of the unlawful acts of his subordinates and he contends that the Trial Chamber did not examine the 1100 Regarding the structure of the SRK see Defence Appeal Brief para 490 regarding the professional level the organisation of the SRK and specific witnesses testifying in this regard see Defence Appeal Brief paras 491-492 1101 Regarding the testimony of Witness Hvaal Galić alleges that this can only be used for proving the manner in which the passage through Serb-held territory was controlled by SRK soldiers but for no other purpose than that Defence Appeal Brief para 491 fn 415 The Trial Chamber used this testimony as proof as stated in a footnote of the professionalism of the SRK soldiers “Hvaal in particular testified in relation to the control over movement on SRKheld territory ” Trial Judgement fn 2131 It thus used the tight control of the passage by Bosnian Serb soldiers as an example demonstrating the professionalism of the soldiers As for Galić’s allegation that “every party in war takes care of who is visiting its territory” Defence Appeal Brief para 491 fn 415 implying that the SRK’s control cannot be used as proof for the degree of the army’s organisational structure it has to be said that the level of control which thus is enacted by the party controlling its territory very well is an indicator of an overall existing organisational structure of the respective army Also regarding the testimony of Witness Van Baal Galić contends that this testimony can only be used to prove the smooth flow of information from the bottom to the top of the SRK hierarchy but does not mean that every single event came to the attention of the SRK leaders Defence Appeal Brief para 491 fn 415 The Trial Chamber never made and never wanted to prove such an unrealistic statement as the latter and in fact used this witness testimony to prove there was good information flow within the SRK’s organisational structure See Trial Judgement para 617 fn 2136 153 Case No IT-98-29-A 30 November 2006 contents of the reports he received 1102 The Prosecution argues that the Trial Chamber only dealt at this stage with the developed communication system of the SRK and did not consider the reporting of unlawful activities so Galić’s criticisms are premature The Prosecution also considers Galić to have mistakenly read into this part of the Trial Judgement a finding that he could personally see the whole front line and control every piece of weaponry 1103 363 The Appeals Chamber considers that Galić’s contentions fall into two principal lines of argument First he contests a purported Trial Chamber finding that he was personally able to monitor the entire front line Second he argues that it does not follow from the presence of an efficient monitoring system that he was informed of unlawful acts on the part of his subordinates 364 The Appeals Chamber considers that both lines of argument are misplaced The Trial Chamber did not find that Galić was able to control the entire front line through personal monitoring Rather it merely noted how the monitoring and reporting system of the SRK functioned The Trial Chamber found that “the central core of the SRK command was the Corps briefings” and that communications within the SRK were made by phone and radio and through written commands 1104 Furthermore although the Trial Judgement states that “General Galić personally observed the situation in the field” 1105 the Appeals Chamber does not consider this as meaning that Galić was able to observe everything at the same time As the Trial Chamber noted Galić travelled to certain areas “when necessary without a strict schedule” and inspected one particular brigade “every month or two” and another “on two occasions” 1106 In other words Galić like other professional general officers discovered for himself what was happening in the field at regular intervals there is no contention nor need there be one that he was at all times able to observe everything personally 365 Turning to the second line of contention the relevant part of the Trial Judgement to which Galić’s challenges relate is entitled “The Reporting and Monitoring Systems of the SRK” 1107 This part does not consider Galić’s knowledge of his subordinates’ unlawful acts – that is considered in another part of the Trial Judgement 1108 Rather this part of the Trial Judgement determines whether the SRK had a reporting and monitoring system in place and considers the constituent elements of that system As such Galić’s arguments relating to his lack of knowledge of the unlawful acts of his subordinates are once again misplaced and are dismissed 1102 Defence Appeal Brief paras 495-498 509 Prosecution Response Brief para 17 5 1104 Trial Judgement paras 619 621 1105 Trial Judgement para 620 1106 Trial Judgement paras 620-621 1103 154 Case No IT-98-29-A 30 November 2006 D Control of SRK personnel 366 Galić puts forth a number of arguments in relation to the Trial Chamber’s findings on his control over SRK personnel These arguments relate to control over sniping activity control over shelling activity and control over SRK weaponry 1 Control over sniping activity 367 Galić contends that the evidence of Witness Fraser in paragraph 629 of the Trial Judgement cannot be accepted as proof that there was control over sniping activity nor does the rest of the evidence referred to by the Trial Chamber prove such control To the contrary he claims that the sniping activity “understood to mean action from light infantry armament” was controlled at platoon or detachment level and the only rule that prevailed was to open fire only in response to shootings from the ABiH side 1109 The Prosecution responds that the Trial Chamber referred to Witness Fraser’s testimony in order to demonstrate the professionalism and skill of the SRK snipers and the co-ordination of their activities and was therefore not cited for the reasons invoked by Galić 1110 It argues that Galić does not claim that the Trial Chamber erred in considering this evidence but rather points to evidence presented by his own witnesses to the effect that orders were given not to attack civilians and claims that this issue was considered in another part of the Trial Judgement 1111 368 The Appeals Chamber notes that the portion of Witness Fraser’s evidence that appears in paragraph 629 of the Trial Judgement was used to support the propositions that “Serbian snipers were professionally trained” that their “activity appeared to have been coordinated” and that formal complaints by SFOR followed by a face-to-face meeting with Galić resulted in a decrease in sniping 1112 Galić does not demonstrate that those findings of the Trial Chamber are unreasonable Rather he refers to matters already considered by the Appeals Chamber namely the issue of the definition of sniping and the contention that orders were given only to fire in response to ABiH forces attacks or when there was danger but does not give any new argument in support 1113 This part of Galić’s ground of appeal is accordingly dismissed 1107 Trial Judgement Part IV B 1 b Trial Judgement Part IV C 1109 Defence Appeal Brief para 501 1110 Prosecution Response Brief para 17 6 1111 Prosecution Response Brief para 17 7 1112 Trial Judgement para 629 1113 See respectively grounds 14 and 6 1108 155 Case No IT-98-29-A 30 November 2006 2 Control over shelling activity 369 Galić contends that the testimonies referred to by the Trial Chamber in that section of the Trial Judgement discussing control over shelling cannot be relied upon as they contradict the testimony of other witnesses and are challenged in the UN Commission of Experts Report 1114 He further argues that the witnesses whose testimonies were cited were not able to say from where the fire was opened or to where it was directed – their allegations thus being too general – and also that these witnesses refer to the shelling of military targets thus excluding the deliberate targeting of civilians 1115 As such Galić claims that “from the testimony of these witnesses nothing else can be concluded but that the actions were controlled yet certainly not that they were illegitimate and deliberately directed against civilians” 1116 The Prosecution responds that Galić does not point to any error on the part of the Trial Chamber and claims that the Trial Chamber carefully considered any evidence that distinguished the shelling of lawful targets from unlawful ones 1117 370 Insofar as Galić suggests that the evaluation of witness testimony by the Trial Chamber was erroneous and insofar as he claims that the witness testimony as accepted by the Trial Chamber would contradict both other witness testimonies and the UN Commission of Experts Report Galić would have to show that no reasonable trier of fact could have excluded or ignored inferences that lead to the conclusion that an element of the crime was not proven 1118 The Appeals Chamber finds that he has failed to meet this requirement The Appeals Chamber also notes that even if some of the witness testimony is general in nature this does not detract from the Trial Chamber’s conclusion that the shelling was controlled The sole object of this part of the Trial Judgement as the subheading indicates 1119 was to establish whether or not there was control over shelling activities The Appeals Chamber notes that even Galić himself is of the opinion that witness testimony at trial yields the conclusion that “the actions were controlled” 1120 His argument is therefore rejected 371 The control over SRK weaponry is also challenged by Galić who asserts that the evidence has proved that certain witnesses “were simply not telling the truth about the incident of the 1114 Defence Appeal Brief para 502 Defence Appeal Brief para 503 1116 Defence Appeal Brief para 504 1117 Prosecution Response Brief paras 17 8-17 9 1118 Stakić Appeal Judgement paras 219-220 Čelebići Appeal Judgement paras 458-459 1119 The relevant subheading IV B 1 c iii reads “Control over Shelling Activity” 1120 Defence Appeal Brief para 504 1115 156 Case No IT-98-29-A 30 November 2006 ‘barrage fire’” 1121 Nevertheless no reference to the Trial Record and no reasoning is provided in support of this assertion This argument is therefore dismissed E Was Galić in a position to punish his subordinates 372 Galić contests the Trial Chamber’s finding that he did “not deny that he had the ability to prevent or punish commissions of crimes but … did not have the need to do so” 1122 He claims that the Trial Chamber misinterpreted the position he expressed in his Pre-Trial Brief and his Final Trial Brief General Gali had requested investigation to be carried out regarding some of the UNPROFOR protests but ₣…ğ the return information provided by the lower units and competent services of the SRK indicated that the SRK units did not take part in any illegal actions 1123 He argues that in any case he lacked the authority to punish those who had violated military discipline or committed criminal acts 1124 He claims that the Trial Chamber’s conclusion that he had “the material ability to prosecute and punish those who would go against his orders or had violated military discipline or who had committed criminal acts”1125 is erroneous as the Trial Chamber failed to differentiate between the authority of superiors in the SRK chain of command to punish disciplinary misconduct and the authority of bodies legally established to investigate and punish criminal acts The Prosecution responds that Galić’s Pre-Trial Brief and Final Trial Brief reveal an admission that he had the power to prevent or punish commissions of crimes and that the Trial Chamber acknowledged the role of a military prosecutor 1126 373 The Appeals Chamber notes that it is clear from Galić’s Pre-Trial Brief that he denied having authority “for the prosecution and punishing of those who had violated the military discipline or who had committed criminal acts” 1127 and that other authorities within the SRK were responsible for criminal prosecution while commanders like him only had the authority to impose disciplinary penalties on soldiers 1128 While he denied that the SRK took part in any illegal 1121 Defence Appeal Brief para 505 Trial Judgement para 654 1123 Trial Judgement para 654 citing Defence Pre-Trial Brief para 7 25 and referring to paragraph 24 of the Defence Final Trial Brief which reads “General Stanislav Gali cannot be held criminally responsible pursuant to Article 7 3 of the Statute and this for the main reason that criminal behaviours of subordinates which would represent a violation of international humanitarian law provisions did not exist ” 1124 Defence Appeal Brief para 507 1125 Trial Judgement para 662 1126 Prosecution Response Brief para 17 10 1127 Defence Pre-Trial Brief para 7 38 1128 Defence Pre-Trial Brief para 7 39 1122 157 Case No IT-98-29-A 30 November 2006 actions 1129 Galić nevertheless stated in his Final Trial Brief that should investigation have demonstrated that a violation had occurred he “would certainly not have failed to punish the perpetrator of such an illegal act” 1130 He also states in his Final Trial Brief that “whenever he had … clear information on the existence of some illegal action through the authorities of the SRK he would undertake all the measures to investigate such conduct and to apply corresponding measures against eventual perpetrators Such measures do not necessarily have to be criminal prosecution and may be a disciplinarian procedure as well as elimination of individuals from the composition of the SRK units” 1131 374 Accordingly in Galić’s own words he had the authority to respond to illegal acts on the part of his subordinates 1132 Thus Galić has not shown that no reasonable trier of fact could have come to the same conclusion as the Trial Chamber in finding that “ t he Defence does not deny that General Galić had the ability to prevent or punish commissions of crimes but argues that he did not have the need to do so ”1133 This part of Gali ’s ground of appeal is therefore dismissed F Galić’s knowledge of the crimes 375 Galić challenges the Trial Chamber’s finding that he was “fully appraised of the unlawful sniping and shelling at civilians taking place in the city of Sarajevo and its surroundings” 1134 His arguments fall into the following categories 1 protests delivered to him in person 2 protests delivered to his subordinates 3 the character of the protests delivered and 4 the control of the artillery assets The Prosecution responds that Galić’s concerns regarding the evidence were taken into account by the Trial Chamber that Galić has not pointed to any error by the Trial Chamber and that Galić overstates the evidence to the contrary 1135 1 Protests delivered to Galić in person 376 Galić argues that the evidence before the Trial Chamber lacked precision as to the time and location of each specified incident and that he was therefore unable to proceed with any investigation 1136 He also objects1137 to the finding that he was put on notice through media coverage that “criminal activity attributed to forces under his command and control had been 1129 Defence Pre-Trial Brief para 7 25 Defence Final Trial Brief para 24 1131 Defence Final Trial Brief para 1068 1132 He may not have had the power to bring every form of punishment against a perpetrator but that was not alleged nor is it necessary to find him criminally responsible under Article 7 1 of the Statute 1133 Trial Judgement para 654 1134 Trial Judgement para 705 referred to at paragraph 529 of Defence Appeal Brief 1135 Prosecution Response Brief para 17 13 1136 Defence Appeal Brief paras 514 519 525 1130 158 Case No IT-98-29-A 30 November 2006 perpetrated” 1138 Those arguments are the same as those he submitted at trial and were duly taken into account by the Trial Chamber 1139 Galić expresses on appeal his disagreement with the conclusions of the Trial Chamber but does not point to any specific error of the Trial Chamber He does argue that the credibility of the testimonies of Witnesses Abdel Razek Henneberry and W is at issue but only by referring in a footnote of his Appeal Brief to the Dissenting Opinion of Judge Nieto Navia without supporting his allegation 1140 His only specific argument is that the evidence given by Witness Abdel-Razek does not show that he intended that civilians be targeted but rather that he was implementing the agreement that the airport could not be crossed thereby preventing “the transfer of … ABiH soldiers” which Gali claims was “practically allowed” by UNPROFOR 1141 The evidence of Witness Abdel-Razek however was not used by the Trial Chamber to prove that Galić intended that civilians be targeted while crossing the airport but rather to prove that Abdel-Razek the UNPROFOR Commander for the Sarajevo Sector protested against the shelling 1142 Galić’s argument is therefore without merit and is dismissed 2 Protests delivered to Galić’s subordinates 377 Galić challenges the finding that he was put on notice by complaints filed with his subordinates arguing that they never informed him of any unlawful conduct 1143 The Appeals Chamber finds that a reading of the Trial Judgement makes clear that a number of protests were in fact made to Galić’s subordinates 1144 Galić offers no reasoning in support of his challenge to these findings of the Trial Chamber Rather he concentrates his challenge on arguing that the protests were not passed up the chain of command to him by his subordinates The conclusion of the Trial Chamber in this regard was that it had “no doubt that Galić was subsequently informed by his subordinates” 1145 The Trial Chamber made this inference based on extensive evidence showing that the SRK’s reporting and monitoring system was efficient and professional and functioned properly and after making allowance for the “possibility that General Galić was not aware of each and every crime that had been committed by the forces under his command” 1146 Galić has not shown that no reasonable trier of fact could have come to the same conclusion as that of the Trial Chamber and his argument is therefore dismissed 1137 Defence Appeal Brief para 520 Trial Judgement para 695 1139 Trial Judgement para 666 referring to paragraph 7 33 of the Defence Pre-trial Brief and paragraph 24 of the Defence Final Trial Brief 1140 Defence Appeal Brief para 515 1141 Defence Appeal Brief para 516 1142 See Trial Judgement para 668 1143 Defence Appeal Brief para 518 Defence Reply Brief para 160 1144 Trial Judgement paras 685-694 1145 Trial Judgement para 702 1146 Trial Judgement paras 700-701 1138 159 Case No IT-98-29-A 30 November 2006 3 The character of the protests delivered 378 Galić argues that “the evidence has demonstrated that there were many protests which were not grounded” that he “devoted his due attention to all the protests” for which he received sufficient information and requested investigation but that the protests were “unfounded” 1147 He nevertheless does not point to any part of the Trial Judgement where the Trial Chamber erred in this regard He only generally refers to Witness DP35 and Witness Indić without any reference to a contentious part of their testimony This part of Galić’s ground of appeal therefore fails 4 The control of the artillery assets 379 Galić first argues that the Trial Chamber’s findings as regards his knowledge of artillery assets are incorrect given that no mention is made of artillery force being used unlawfully 1148 Second he argues that the Trial Chamber erred when concluding that the rate of ammunition implied that artillery was being used unlawfully 1149 Last he contends that the Trial Chamber failed to address the basic issue “what was the military advantage and how strong a military advantage it was necessary to achieve by the use of artillery because that is the only test that could lead to a correct conclusion whether there was or not an unlawful action of artillery” 1150 380 With regard to Galić’s claim that artillery was not used unlawfully the Appeals Chamber notes that he ignores the plethora of evidence of unlawful sniping and shelling activities With regard to his argument that “ t he rate of use of ammunition itself does certainly not imply that the artillery was used unlawfully” 1151 the Appeals Chamber notes that in the paragraph at issue the Trial Chamber held that “the rate of use of ammunition which would have been in excess of what was required for regular military operations is among the reasons which allow the Trial Chamber to infer that Galić knew of the criminal activities of his troops” 1152 The Trial Chamber therefore considered the rate of ammunition only as one factor among others to determine that Galić had knowledge of the criminal activities of his troops His argument is therefore misconceived With regard to his final argument on determining military advantage the Appeals Chamber notes that the military advantage gained from an attack is indeed among the factors the Trial Chamber must take into account in assessing the legality of an attack but also notes that the Trial Chamber as the 1147 Defence Appeal Brief para 517 Defence Appeal Brief para 521 1149 Defence Appeal Brief para 526 1150 Defence Appeal Brief para 523 1151 Defence Appeal Brief para 526 1152 Trial Judgement para 703 1148 160 Case No IT-98-29-A 30 November 2006 Appeals Chamber already found properly fulfilled its obligations in that respect 1153 This subground of appeal is accordingly dismissed G Reasonableness of measures taken by Galić 381 Galić disputes the Trial Chamber’s finding that he did not take reasonable measures to prosecute and punish the perpetrators of crimes against civilians 1154 His principal argument is that there is no evidence to indicate that any of the crimes analysed by the Trial Chamber in paragraphs 707 to 717 of the Trial Judgement were actually perpetrated 1155 In addition he argues that the Trial Chamber’s conclusion that no proper instructions were given regarding the Geneva Conventions was drawn despite evidence to the contrary being presented at trial 1156 In response the Prosecution claims that many of Galić’s challenges to this section are misplaced as they relate to findings made earlier in the Trial Judgement The Prosecution argues that Galić does not support his argument that the Trial Chamber made erroneous findings The Prosecution also submits that Galić does not dispute the finding that there was “no evidence in the Trial Record that SRK troops were prosecuted or punished for having unlawfully targeted civilians” 1157 382 The Appeals Chamber observes that the section of the Trial Judgement at issue concerns the measures taken by Galić upon his knowledge of the commission of crimes Determinations of the precise crimes were made in a previous section of the Trial Judgement As such any argument in this part relating to the lack of evidence for the crimes is indeed misplaced Further Galić fails to support his allegations With respect to his argument regarding the Geneva Conventions the Appeals Chamber notes that the Trial Chamber did consider the evidence indicating that Galić conveyed instructions to respect the 1949 Geneva Conventions However the Trial Chamber found that those instructions instilled an inadequate and erroneous understanding of the obligations under the Conventions For example one battalion commander under Galić had the understanding that civilians had to be 300 metres away from a confrontation line in order to escape targeting which the Trial Chamber found to be obviously improper considering the context of an urban battlefield 1158 The Appeals Chamber does not find that no reasonable trier of fact could have come to the same conclusions as that of the Trial Chamber and this sub-ground of appeal is dismissed 1153 See supra Ground 12 Defence Appeal Brief paras 535 537 1155 Defence Appeal Brief paras 530 536 1156 Defence Appeal Brief para 532 1157 Prosecution Response Brief paras 17 18-17 19 1158 Trial Judgement para 718 1154 161 Case No IT-98-29-A 30 November 2006 H Actions undertaken in furtherance of a plan 383 Galić argues that the Trial Chamber erroneously concluded that there was a plan to attack civilians and commit criminal acts against civilians in Sarajevo and that he not only knew of the attacks but wilfully intended the acts to happen 1159 In support of his argument he challenges the credibility and veracity of the evidence from witnesses Abdel Razek and Henneberry 1160 and contests the Trial Chamber’s finding that the strategic goals formulated at a meeting over which he presided included the direction that “Sarajevo must be either divided or razed to the ground” contending that the Trial Chamber neglected to consider the “Minutes of the Assembly of 12 May 1992” which contain no reference to such a goal 1161 The Prosecution responds that Galić does not provide any proper argumentation against the relevant findings of the Trial Chamber It refers to its earlier interpretation of Witness Donia’s evidence and contests Galić’s reading of Witness Henneberry’s evidence 1162 384 With regard to Witness Abdel Razek and Witness Henneberry Galić argues that their testimonies lack credibility as they wrongly reported that Witness W was angry with him whereas Witness W did not recall such conversation 1163 He does not however point to contentious parts of their testimonies and in any case Witness W mentioned in his testimony as the Trial Chamber correctly noted that the attitude of Galić in response to his protests against the targeting of civilians led to his “profound indignation which broke their relationship” 1164 This part of Galić’s ground of appeal therefore fails 385 With regard to the strategic objective concerning Sarajevo the Appeals Chamber notes that some confusion indeed arises out of the Trial Chamber’s finding According to the Donia Report1165 referred to by the Trial Chamber the fifth strategic goal of the 16th Session of the Assembly of the Serbian People in Bosnia-Herzegovina held on 12 May 1992 was that Sarajevo had to be divided The formulation of this fifth objective as “divided or razed to the ground” was only made at a meeting with local Serbian leaders presided over by Galić on 14 May 1992 The Trial Chamber therefore erred in stating that the fifth objective was so formulated at the 12 May 1992 meeting of Serbian leaders as this formulation cannot be found in the minutes of the 12 May 1992 meeting Nevertheless the Appeals Chamber does not find this to be to the prejudice of Galić as this error 1159 Defence Appeal Brief paras 538-539 Defence Appeal Brief fn 438 1161 Defence Appeal Brief fn 437 referring to paragraph 726 of the Trial Judgement 1162 Prosecution Response Brief para 17 20 1163 Defence Appeal Brief para 538 fn 438 1164 Trial Judgement para 677 referring to Witness W T 9566 closed session 1165 Confidential Submission of Expert Report filed on 25 February 2002 “Donia Report” 1160 162 Case No IT-98-29-A 30 November 2006 did not affect the Trial Chamber’s conclusion that he and his subordinates acted in furtherance of a plan This ground of appeal is thus dismissed I Article 7 1 responsibility of Galić 386 Galić contends that it is not possible to conclude that he issued orders to target civilians He argues that such a conclusion is “based on the presumption that the criminal acts were not sporadic acts of soldiers out of control but carried out pursuant to a deliberate campaign of attacking civilians which must have emanated from a higher authority or at least had its approval” 1166 He contends that the issuing of orders cannot be presumed or established on the basis of assumptions particularly when the evidence goes in the opposite direction The Prosecution responds that Galić did not provide proper arguments against the findings of the Trial Chamber 1167 It contends that Galić’s argument that there was no proof to support the claim that orders were issued to target civilians goes against the overwhelming quantity of circumstantial evidence as well as the direct evidence of Witness AD 1168 1 Preliminary issue 387 The Appeals Chamber notes that Galić reiterates without elaborating that he was not aware that crimes were committed1169 and that the Trial Chamber was incorrect to conclude that he failed to prevent crimes or punish perpetrators 1170 As no specific support is provided those arguments will not be dealt with by the Appeals Chamber He also argues that the Trial Chamber “did not offer grounds”1171 for its conclusion that he “satisfies all requirements of actus reus and mens rea of the crimes proved at trial” 1172 but fails to provide any argument in support of such a contention This argument is accordingly dismissed The same applies to his argument that the Trial Chamber erroneously concluded that orders were given to increase or decrease sniper fire 1173 Lastly the Appeals Chamber notes that Galić contends that he cannot be convicted twice for the same offence under two different counts 1174 The Appeals Chamber refers in that respect to ground 9 above addressing in detail the issue of cumulative convictions 1166 Defence Appeal Brief para 542 Prosecution Response Brief para 17 20 1168 Prosecution Response Brief para 17 22 1169 Defence Appeal Brief para 545 1170 Defence Appeal Brief para 546 1171 Defence Appeal Brief para 544 1172 Trial Judgement para 748 1173 Defence Appeal Brief para 540 1174 Defence Appeal Brief para 548 1167 163 Case No IT-98-29-A 30 November 2006 2 Whether orders were given to target civilians 388 In support of this allegation Galić first argues that the evidence given by Witness AD does not allow the Trial Chamber to conclude that orders were ever given to target civilians He claims that this testimony is not relevant as Witness AD “did not fear the Commander of his brigade for failure to execute his orders because he knew that the Commander could not punish him because he could not say that he failed to execute orders to target civilians as in that case he would have probably had consequences from the higher command” 1175 Nevertheless Galić does not cite to any evidence to counter Witness AD’s testimony which was in any case not used to directly prove that Galić ordered that civilians be targeted but to prove that “the Commander of the Ilija Brigade gave orders to his mortar battery to target ambulances a marketplace funeral processions and cemeteries further north from the city in Mrakovo” 1176 Galić’s argument is accordingly dismissed 389 Second Galić argues that the Trial Chamber could not conclude that he issued orders to target civilians He argues that the method used by the Trial Chamber – that is inferring from the finding that “the criminal acts were not sporadic acts of soldiers out of control but were carried out pursuant to a deliberate campaign of attacking civilians which must have emanated from a higher authority or at least had its approval” 1177 that he must have issued orders to target civilians – is not appropriate as orders “cannot be presumed” 1178 He challenges the manner in which the Trial Chamber concluded that he ordered the crimes committed at trial a challenge which has already been dealt with and dismissed by the Appeals Chamber under ground ten 390 For the foregoing reasons Galić’s eighteenth ground of appeal is dismissed 1175 Defence Appeal Brief para 541 fn 440 Trial Judgement para 219 1177 Trial Judgement para 741 1178 Defence Appeal Brief para 542 1176 164 Case No IT-98-29-A 30 November 2006 XVII APPEAL AGAINST SENTENCE 391 The Trial Chamber found Gali guilty of five counts including violations of the laws or customs of war and crimes against humanity and imposed a single sentence of 20 years’ imprisonment 1179 Both Gali and the Prosecution appealed the sentence A Standard of review in sentencing 392 The relevant provisions on sentencing are Articles 23 and 24 of the Statute and Rules 100 to 106 of the Rules Both Article 24 of the Statute and Rule 101 of the Rules contain general guidelines for a Trial Chamber obliging it to take into account the following factors in sentencing the gravity of the offence or totality of the culpable conduct the individual circumstances of the convicted person the general practice regarding prison sentences in the courts of the former Yugoslavia and aggravating and mitigating circumstances 1180 393 Appeals against sentence as appeals from a trial judgement are appeals stricto sensu they are of a corrective nature and are not trials de novo 1181 Trial Chambers are vested with a broad discretion in determining an appropriate sentence due to their obligation to individualise the penalties to fit the circumstances of the accused and the gravity of the crime 1182 As a general rule the Appeals Chamber will not revise a sentence unless the Trial Chamber has committed a “discernible error” in exercising its discretion or has failed to follow the applicable law 1183 It is for the Appellant to demonstrate how the Trial Chamber ventured outside its discretionary framework in imposing his sentence 1184 394 To show that the Trial Chamber committed a discernible error in exercising its discretion “the Appellant has to demonstrate that the Trial Chamber gave weight to extraneous or irrelevant considerations failed to give weight or sufficient weight to relevant considerations made a clear error as to the facts upon which it exercised its discretion or that the Trial Chamber’s decision was 1179 Trial Judgement para 769 Čelebići Appeal Judgement paras 429 716 In addition Trial Chambers are obliged to take into account the extent to which any penalty imposed by a court of any State on the convicted person for the same act has already been served as referred to in Article 10 3 of the Statute and in Rule 101 B iv of the Rules 1181 Kupreškić et al Appeal Judgement para 408 1182 Čelebići Appeal Judgement para 717 1183 Prosecutor v Miodrag Jokić Case No IT-01-42 1-A Judgement on Sentencing Appeal 30 August 2005 para 8 Deronjić Sentencing Judgement para 8 Blaškić Appeal Judgement para 680 Krstić Appeal Judgement para 242 Kupreškić et al Appeal Judgement para 408 Jelisić Appeal Judgement para 99 Čelebići Appeal Judgement para 725 Furundžija Appeal Judgement para 239 Aleksovski Appeal Judgement para 187 Tadić Sentencing Appeal Judgement para 22 1184 Čelebići Appeal Judgement para 725 1180 165 Case No IT-98-29-A 30 November 2006 so unreasonable or plainly unjust that the Appeals Chamber is able to infer that the Trial Chamber must have failed to exercise its discretion properly” 1185 B Galić’s appeal against sentence Ground 19 395 Under his nineteenth ground of appeal Gali argues that the Trial Chamber erroneously applied the law when determining his sentence and that a more lenient sentence should have been imposed 1186 The Prosecution rejects all arguments in this regard 1187 396 The Appeals Chamber identifies four main arguments in support of this ground of appeal 1 the maximum sentence that can be imposed by the International Tribunal is 20 years’ imprisonment 2 the Trial Chamber erred when stating that the commission of the crimes would have attracted the harshest of sentences in the former Yugoslavia 1188 3 the Trial Chamber erred when considering as aggravating circumstances factors which are elements of the crimes for which he was found guilty 1189 and 4 the Trial Chamber erred in not taking into account mitigating circumstances such as the conditions under which he commanded his troops 1190 the conditions of urban warfare 1191 and his personal and family situation 1192 1 Maximum sentence 397 Galić argues that a sentence of 20 years’ imprisonment is the highest possible sentence that can be pronounced by the International Tribunal 1193 He submits that the application of Article 24 of the Statute and Rule 101 B iii of the Rules is mandatory 1194 referring to the principle of “nulla poena sine lege”1195 and to “the general maxim of the criminal law that the law which must be 1185 Babi Judgement on Sentencing Appeal para 44 Momir Nikolić Judgement on Sentencing Appeal para 95 Defence Appeal Brief para 586 1187 Prosecution Response Brief paras 18 1-18 43 1188 Defence Appeal Brief paras 556-558 1189 Defence Appeal Brief paras 559-564 1190 Defence Appeal Brief paras 566-569 1191 Defence Appeal Brief paras 570-573 1192 Defence Appeal Brief paras 574-585 1193 Defence Appeal Brief para 553 referring to Defence Final Trial Brief paras 1123-1140 Defence Response Brief paras 10-21 The Appeals Chamber notes with concern that Galić does not substantiate this argument in his Appeal Brief but only refers to the arguments he made in his response to the Prosecution’s appeal This part of his nineteenth ground of appeal could be dismissed on that basis alone Nevertheless the Appeals Chamber will still address the arguments made in the Defence Response Brief 1194 Defence Response Brief para 13 referred to in Defence Appeal Brief para 553 Article 24 1 of the Statute states “The penalty imposed by the Trial Chamber shall be limited to imprisonment In determining the terms of imprisonment the Trial Chamber shall have recourse to the general practice regarding prison sentences in the courts of the former Yugoslavia ” Rule 101 B of the Rules provides “In determining the sentence the Trial Chamber shall take into account the factors mentioned in Article 24 paragraph 2 of the Statute as well as such factors as … the general practice regarding prison sentences in the courts of the former Yugoslavia … ” 1195 Defence Response Brief paras 26-27 1186 166 Case No IT-98-29-A 30 November 2006 applied is the one more lenient for the accused” 1196 He argues that the International Tribunal is bound by the sentencing law and practices of the former Yugoslavia and its successor states which all have maximum prison sentences of 20 years and exclude a sentence of life imprisonment 1197 Specifically he argues that the introduction of a sentence of life imprisonment in Rule 101 A of the Rules of Procedure and Evidence is contrary to Article 24 of the Statute 1198 398 The Appeals Chamber recalls that the International Tribunal while bound to take the sentencing law and practice of the former Yugoslavia into account does not have to follow it 1199 The Appeals Chamber thus rejects Galić’s argument that the maximum sentence imposable by the International Tribunal is 20 years’ imprisonment The Appeals Chamber also finds that the principle of lex mitior to which Galić refers 1200 is not applicable to the relationship between the law of the International Tribunal and the law of the national courts of the former Yugoslavia The Appeals Chamber recalls its previous finding in this regard It is an inherent element of the principle of lex mitior that the relevant law must be binding upon the court Accused persons can only benefit from the more lenient sentence if the law is binding since they only have a protected legal position when the sentencing range must be applied to them The principle of lex mitior is thus only applicable if a law that binds the International Tribunal is subsequently changed to a more favourable law by which the International Tribunal is also obliged to abide 1201 399 Gali ’s arguments are accordingly dismissed 2 The Trial Chamber’s finding that the commission of the crimes in the present case would have attracted the harshest sentence in the former Yugoslavia 400 Galić claims that the Trial Chamber erroneously that found his criminal liability would give rise to the harshest possible sentence in the former Yugoslavia 1202 He argues that in the practice of the courts of the former Yugoslavia “the severity of a criminal act itself was not a decisive factor for pronouncing the harshest of sentences” 1203 rather the circumstances of the case and the individual circumstances of the accused were appraised when sentencing a perpetrator 1204 1196 Defence Response Brief para 16 Defence Appeal Brief para 553 See also Defence Response Brief paras 29-30 37-42 1198 Defence Response Brief para 42 1199 Tadi Sentencing Appeal Judgement para 21 see also Bla ki Appeal Judgement para 682 Krsti Appeal Judgement para 260 1200 Defence Response Brief para 16 discussing “the general maxim of criminal law that the law which must be applied is the more lenient for the accused” 1201 Dragan Nikoli Judgement on Sentencing Appeal para 81 Deronji Sentencing Appeal Judgement para 97 1202 Defence Appeal Brief para 556 1203 Defence Appeal Brief para 557 1204 Defence Appeal Brief para 557 1197 167 Case No IT-98-29-A 30 November 2006 401 The Prosecution responds that the Trial Chamber did not consider that the severity of the criminal act itself was a decisive factor under the law of the former Yugoslavia 1205 It argues that the Trial Chamber took into account the relevant provisions of the Yugoslav law and that Galić does not attempt to show any error in the Trial Chamber’s analysis of those provisions 1206 Further it argues that such a stand entirely ignores parts of the Trial Judgement 1207 402 The Appeals Chamber recalls the paragraph in which the contentious statement is included The Majority of the Trial Chamber has found that General Galić participated in a campaign of sniping and shelling and that crimes charge d in the Indictment were made out For his participation in these crimes General Galić has been found guilty of unlawfully committing the crimes of terror upon civilians under Article 3 of the Statute count 1 murder under Article 5 of the Statute counts 2 and 5 and inhumane acts under Article 5 of the Statute counts 3 and 6 The commission of these crimes would have attracted the harshest of sentences in the former Yugoslavia 1208 403 The Appeals Chamber sees no error in the Trial Chamber’s finding that “ t he commission of these crimes would have attracted the harshest of sentences in the former Yugoslavia” 1209 As correctly identified by the Trial Chamber 1210 Article 142 of the SFRY Criminal Code punishes war crimes against civilians including killings inhumane treatment and application of measures of intimidation and terror with a minimum sentence of 5 years’ imprisonment or the death penalty 1211 or by 20 years in prison if a prison sentence was substituted for the death penalty 1212 These penalties are indeed the most severe that appear in the SFRY Criminal Code 1213 404 Moreover with respect to Galić’s claim that in the practice of the courts of former Yugoslavia “the severity of a criminal act was not a decisive factor for pronouncing the harshest of sentences”1214 because “a sentence is being pronounced against the perpetrator of the crime and not against the crime itself” 1215 the Appeals Chamber finds this claim to rest upon a misinterpretation of the Trial Chamber’s finding The Trial Chamber found that “ t he commission of these crimes would have attracted the harshest of sentences in the former Yugoslavia” but explicitly cites Article 41 1 of the SFRY Criminal Code which reads 1205 Prosecution Response Brief para 18 5 Prosecution Reply Brief para 18 5 1207 Prosecution Reply Brief para 18 5 arguing that Gali ’s assertion ignores paragraphs 764-766 of the Trial Judgement 1208 Trial Judgement para 763 1209 Trial Judgement para 763 1210 Trial Judgement fn 2477 1211 SFRY Criminal Code art 142 1212 SFRY Criminal Code art 38 2 1213 See SFRY Criminal Code art 38 1214 Defence Appeal Brief para 557 1215 Defence Appeal Brief para 557 1206 168 Case No IT-98-29-A 30 November 2006 The court shall determine the sentence for the perpetrator of a given crime within the limits prescribed by the law for this crime bearing in mind the purpose of the punishment and taking into account all the circumstances that could lead to this sentence being more or less severe in particular the degree of criminal responsibility the motives of the crime the degree of the threat or damage to protected property the circumstances under which the crime was committed the background of the perpetrator his personal circumstances and behaviour after the commission of the crime as well as other circumstances which relate to the character of the perpetrator 1216 The Trial Chamber thus made it clear that a number of other factors had to be considered in determining the appropriate penalty 405 The Appeals Chamber concludes that Galić has failed to demonstrate a discernible error on the part of the Trial Chamber This part of his nineteenth ground of appeal is accordingly dismissed 3 Whether the Trial Chamber took into account as aggravating circumstances factors which are elements of the crimes for which he was found guilty 406 Galić argues that the Trial Chamber erred in law in considering as aggravating circumstances factors which form part of the criminal offences for which he was pronounced guilty 1217 He identifies the following the suffering of the victims 1218 the frequency of the illegal actions of the SRK 1219 the anguishing environment 1220 and his position as a commander 1221 407 The Prosecution responds that Galić is incorrect in arguing that the Trial Chamber considered these factors as aggravating circumstances 1222 It claims that most of those factors were assessed as part of the gravity of the offence Further it argues that the Trial Chamber properly took into account Galić’s position and experience as aggravating circumstances as the mode of liability of “ordering” for which Galić was found guilty merely requires that the person had a position of authority whereas the Trial Chamber took into account the fact that Galić was “a very senior officer” and thus considered not so much his position of authority as the degree of his rank 1223 408 The Appeals Chamber recalls that an element of the crime cannot constitute an aggravating circumstance 1224 For example a discriminatory intent cannot aggravate the crime of persecutions since it is an indispensable legal ingredient of that crime pursuant to Article 5 h of the Statute 1216 SFRY Criminal Code art 41 1 cited at footnote 2476 of the Trial Judgement Defence Appeal Brief para 560 1218 Defence Appeal Brief para 561 1219 Defence Appeal Brief para 562 1220 Defence Appeal Brief para 563 1221 Defence Appeal Brief para 564 1222 Prosecution Response Brief para 18 6 1223 Prosecution Response Brief para 18 10 1224 Bla ki Appeal Judgement para 693 1217 169 Case No IT-98-29-A 30 November 2006 however discriminatory intent can be used as an aggravating circumstance for the other offences enumerated in Article 5 of the Statute 1225 a Gravity of the offence 409 The Appeals Chamber notes Galić’s argument in reference to the factors set out in paragraph 764 of the Trial Judgement that “ i t appears that the Majority appraised all of these circumstances as aggravating factors” 1226 However Galić overlooks the fact that that paragraph does not address aggravating circumstances but rather the gravity of the offence 1227 When assessing the gravity of the offence a Trial Chamber must take into account the inherent gravity of the crime and the criminal conduct of the accused the determination of which requires a consideration of the particular circumstances of the case and the crimes for which the accused was convicted as well as the form and degree of participation of the accused in those crimes 1228 410 The Trial Chamber held that the gravity of the offence for which Galić was found guilty encompasses the suffering of the victims the frequency of illegal actions by the SRK and the anguishing environment in which hundreds of people were killed and thousands wounded and terrorised 1229 These factors are particular circumstances of the crimes for which Galić were convicted and clearly play a role when assessing his sentence Galić failed to demonstrate that the Trial Chamber committed an error when it took these factors into account in its assessment of the gravity of the offence b Gali ’s superior position as an aggravating circumstance 411 The Trial Chamber considered as an aggravating factor “the fact that General Galić occupied the position of VRS Corps Commander and repeatedly breached his public duty from this very senior position” 1230 Galić argues that the Trial Chamber erred in law as his position as a 1225 Vasiljevi Appeal Judgement paras 171-173 Defence Appeal Brief para 559 fn 448 citing Trial Judgement para 764 1227 It is clear that the Trial Chamber in the section in which it addresses the applicable law on sentencing distinguished between the concept of the gravity of the offence and that of aggravating circumstances See Trial Judgement paras 758 760 Also when applying the law on the facts of the case it first addressed the gravity of the offence Trial Judgement para 764 and then Gali ’s position as commander as an aggravating circumstance Trial Judgement para 765 1228 See Bla ki Appeal Judgement para 683 Vasiljevi Appeal Judgement para 182 Furund ija Appeal Judgement para 249 Aleksovski Appeal Judgement para 182 1229 The Appeals Chamber notes that the actual infliction of terror on the civilians of Sarajevo taken into account by the Trial Chamber as an aspect of the gravity of the offence could also have been considered as a separate aggravating circumstance since it is as shown above not an element of the crime of terror The Appeals Chamber also recalls however that a factor can only be taken into account once in sentencing that is either in the gravity of the offence or as an aggravating circumstance See Deronji Sentencing Appeal Judgement para 106 “The Appeals Chamber considers that factors which a Trial Chamber takes into account as aspects of the gravity of the crime cannot additionally be taken into account as separate aggravating circumstances and vice versa ” 1230 Trial Judgement para 765 1226 170 Case No IT-98-29-A 30 November 2006 commander was already an element of ordering the mode of liability under which he was found guilty 1231 The Prosecution responds that the position of authority is a requirement of “ordering” but argues that “at what level of authority an illegal order was issued is … a relevant sentencing factor” 1232 It argues that Galić was a “very senior officer” and therefore the Trial Chamber could take into account “the degree of his rank or authority as aggravating” 1233 412 While the mode of liability of ordering necessarily entails that the person giving the order has a position of authority 1234 the level of authority may still play a role in sentencing as it is not an element of the mode of liability of “ordering” that an accused is high in the chain of command and thus wields a high level of authority 1235 The Appeals Chamber recalls the relevant part of the Trial Judgement Moreover the defendant was not – contrary to his assertion – just a professional soldier General Gali was an experienced military officer of 49 years of age at the time of his appointment as commander of the SRK As a military professional General Gali was well aware of the extent of his obligations laid out in the military codes of the former JNA and then of the VRS The majority of the Trial Chamber has already affirmed General Gali ’s voluntary participation in the crimes of which he has been found guilty He had a public duty to uphold the laws or customs of war The crimes that were committed by his troops or at least a high proportion of these would not have been committed without his assent … The Majority finds that the fact that General Gali occupied the position of VRS Corps commander and repeatedly breached his public duty from this very senior position is an aggravating factor 1236 The Trial Chamber did not regard as an aggravating circumstance the fact that Gali had the authority to give orders Rather it took into account other factors that emanate from his position of authority as commander and found that he repeatedly breached his public duty from this very senior position thereby abusing his position of authority 1237 The Trial Chamber therefore did not use the same factors both to establish Gali ’s responsibility for the crimes and to aggravate his sentence The Appeals Chamber concludes that Galić has failed to demonstrate an error of the Trial Chamber in this regard 1231 Defence Appeal Brief para 564 Prosecution Response Brief para 18 10 1233 Prosecution Response Brief para 18 10 1234 Kordi and erkez Appeal Judgement para 28 1235 The Appeals Chamber has previously considered that the level of authority may affect the sentence See Tadić Sentencing Appeal Judgement para 56 1236 Trial Judgement para 765 1237 Babić Judgement on Sentencing Appeal para 80 1232 171 Case No IT-98-29-A 30 November 2006 4 Whether the Trial Chamber failed to take into account several mitigating circumstances 413 Gali argues that the Trial Chamber failed to take into account a number of mitigating circumstances when rendering the sentence 1238 414 The Appeals Chamber recalls that neither the Statute nor the Rules exhaustively defines the factors which may be taken into account by a Trial Chamber in mitigation of a sentence Rule 101 B ii of the Rules only states that in determining a sentence a Trial Chamber shall take into account “any mitigating circumstances including the substantial cooperation with the Prosecutor by the convicted person before or after conviction” 1239 In general Trial Chambers are “endowed with a considerable degree of discretion in deciding on the factors which may be taken into account” in mitigation of the sentence 1240 It is for the appellant to show that the Trial Chamber erred in exercising its discretion a mere recital of mitigating factors without more does not discharge this burden 1241 Moreover the Appeals Chamber emphasises that an appeal is not the appropriate forum in which mitigating circumstances evidence of which was readily available at trial should be presented for the first time 1242 415 Keeping these requirements in mind the Appeals Chamber now addresses the factors which Galić argues were not considered correctly or not considered at all by the Trial Chamber as mitigating circumstances a The conditions under which Galić commanded the troops 416 Galić argues that the Trial Chamber failed to take into account as a mitigating circumstance the conditions under which he commanded the troops 1243 He points to the chaotic circumstances under which he received his command1244 and the difficulties in the realisation of the full chain of command 1245 He argues that after assuming his position he immediately started to work on dismantling the paramilitary groups thus decreasing the number of victims 1246 He nevertheless admits that he never completely succeeded in his efforts that the problem of the full control of 1238 Defence Appeal Brief paras 565-586 As stated at paragraph 22 of the Serushago Sentencing Appeal Judgement Trial Chambers are “required as a matter of law to take account of mitigating circumstances” See also Musema Appeal Judgement para 395 1240 Čelebići Appeal Judgement para 780 This is also true for factors in aggravation of the sentence 1241 Kvočka et al Appeal Judgement para 675 1242 See Deronjić Sentencing Appeal Judgement para 150 Babić Judgement on Sentencing Appeal para 62 Kvočka et al Appeal Judgement para 674 “As regards additional mitigating evidence that was available though not raised at trial the Appeals Chamber does not consider itself to be the appropriate forum at which such material should first be raised ” See also Kupreškić et al Appeal Judgement para 414 1243 Defence Appeal Brief paras 565-569 1244 Defence Appeal Brief para 566 1245 Defence Appeal Brief para 567 1246 Defence Appeal Brief para 567 citing the Tabeau Report P 3731 1239 172 Case No IT-98-29-A 30 November 2006 these units persisted 1247 and that “it was impossible to achieve full control over an entire battle front of 237 kilometres” in particular having regard to the untrained command staff in the “lower rank units” 1248 He also argues that he undertook all steps necessary to prevent the actions of the paramilitary formations and that he acted in accordance with the rules of the military service and gave orders in respect of the Geneva Conventions 1249 417 The Prosecution responds that the Trial Chamber did find that Gali made efforts to dismantle paramilitary groups and assign their members to other units and that there is therefore no basis for an argument that the Trial Chamber did not consider this issue 1250 It argues that Gali does not point to any findings by the Trial Chamber regarding the effect of the dismantling of the paramilitary groups on the number of the civilian victims Further it argues that Gali does not allege that the Trial Chamber erred in not making any such findings and in any case he does not refer to any evidence on the record that could prove such a causal relationship 1251 In the opinion of the Prosecution Gali further failed to show that he dismantled the paramilitary groups for any other purpose than to restore military discipline 1252 418 The Appeals Chamber considers that Gali ’s argument that he received his command of the SRK units “practically in the state of chaos”1253 is not an argument the Trial Chamber was bound to consider in mitigation As a military commander Gali had the authority and competence to order lawful combat operations and it was his duty to work towards an effective chain of command With respect to the related factor concerning the dismantling of the paramilitary units the Appeals Chamber notes that the Trial Chamber referred to the arguments put forward by Galić in this regard1254 and thus considered this factor It was perfectly within its discretion not to take it into account in mitigation of the sentence 419 The Appeals Chamber reiterates that Trial Chambers have considerable discretion whether or not to accept a factor as a mitigating circumstance Gali has not demonstrated that the Trial Chamber ventured outside its discretionary framework in not taking into account the conditions under which he commanded his troops as a mitigating circumstance 1247 Defence Appeal Brief para 568 Defence Appeal Brief para 569 1249 Defence Appeal Brief para 578 citing the written statement of expert Witness Radinović para 210 Radinović Report D1925 1250 Prosecution Response Brief paras 18 12-18 13 1251 Prosecution Response Brief para 18 14 1252 Prosecution Response Brief para 18 14 1253 Defence Appeal Brief para 566 1254 Trial Judgement para 755 referring to paragraph 1146 of the Defence Final Trial Brief which reads “Immediately after he took over the duty of Corps Commander General Stanislav Galić took all measures to prevent activity of paramilitary formations in order to avoid or reduce possibilities of events that would violate the Laws and Customs of War ” 1248 173 Case No IT-98-29-A 30 November 2006 b The conditions of urban warfare 420 Galić submits that the conditions of urban warfare considerably lessen his criminal responsibility 1255 He argues that the warring sides conducted the conflict in an urban environment and this rendered control of the combat units very difficult He argues that the SRK responses to attacks of the ABiH possibly caused civilian casualties because ABiH forces were mixed with civilians 1256 He acknowledges that the Trial Chamber recognised this in the Trial Judgement but argues that it erroneously found that the ABiH would “from time to time” provoke return fire from the SRK claiming that the ABiH attacked the SRK from civilian areas on a regular basis and significantly contributed to the infliction of collateral damage 1257 421 The Prosecution responds that this argument addresses collateral damage which is irrelevant to the victims of deliberate conduct 1258 To the extent that Galić claims reduced liability this is not a matter of sentencing but of conviction and the argument cannot show any discernible error regarding sentencing 1259 422 The Appeals Chamber notes that the Trial Chamber addressed the circumstance of urban warfare in its determination of Galić’s sentence The Majority of the Trial Chamber is mindful of the siege-like conditions in the city of Sarajevo where one party to the conflict the ABiH was mixed with the civilian population which could be compared to a stalemate situation and of the evidence which suggests that at times the other warring party sought to attract sympathy from the international community by attracting SRK counter-fire or fire at its own civilians The behaviour of the other party however is not an excuse for the deliberate targeting of civilians and as such does not alleviate the responsibility of the Accused 1260 It is accordingly clear that the Trial Chamber considered the issue 423 The Appeals Chamber notes that Galić failed to put forward this argument at trial as a mitigating circumstance The Appeals Chamber reiterates that this is not the appropriate forum in which alleged mitigating circumstances evidence of which was readily available at trial should be presented the first time In any case Gali has failed to demonstrate a discernible error of the Trial Chamber He has not put forward any argument to show that the Trial Chamber had ventured 1255 Defence Appeal Brief para 573 Defence Appeal Brief para 571 1257 Defence Appeal Brief paras 572-573 1258 Prosecution Response Brief para 18 16 1259 Prosecution Response Brief para 18 17 1260 Trial Judgement para 765 footnotes omitted 1256 174 Case No IT-98-29-A 30 November 2006 outside its discretionary framework in not accepting the conditions of urban warfare in mitigation of his sentence This part of Galić’s ground of appeal is therefore dismissed c Personal and family situation 424 Galić argues that the Trial Chamber did not properly consider his personal and family situation 1261 He points to the following factors a the denial of his voluntary surrender b his family situation c his cooperation with UNPROFOR and the international community d his cooperation with the Prosecution and e his illness and exemplary conduct in the UN Detention Unit UNDU i Denial of his voluntary surrender 425 Gali argues that he was deprived of the “the right to decide to voluntarily surrender”1262 since he was arrested before his Indictment was disclosed to him 1263 He argues that in accordance with the “principle of equality of the accused before court” this circumstance should have been accepted as mitigating 1264 The Prosecution responds that Gali did not have a “right” to be given the opportunity to voluntarily surrender 1265 Furthermore his letter to the Ministry of Defence in Belgrade1266 shows that he knew about the Indictment against him and did not wish to surrender but rather tried to evade justice 1267 Galić replies that his letter to the Ministry of Defence in Belgrade in no way indicates that he had knowledge of the Indictment and cannot be interpreted as establishing his reluctance to surrender voluntarily 1268 426 The Appeals Chamber notes that an accused’s voluntary surrender to the International Tribunal has in several cases been taken into account as a mitigating circumstance 1269 The Appeals Chamber considers that if an accused who was arrested before having the opportunity to surrender voluntarily shows a willingness to have done so this mere willingness may depending on the 1261 Defence Appeal Brief paras 574-585 Defence Appeal Brief para 576 1263 Defence Appeal Brief paras 575-576 1264 Defence Appeal Brief para 576 1265 Prosecution Response Brief para 18 18 1266 Letter from Stanislav Gali to the SFRY Minister for Defence 16 September 1999 annexed to Prosecutor v Stanislav Gali Case No IT-98-29-PT Prosecutor’s Further Response to Defence Reply and Documents on Motion for Provisional Release 29 June 2000 filed 30 June 2000 1267 Prosecution Response Brief paras 18 20-18 22 1268 Defence Reply Brief para 167 1269 Naletili and Martinovi Appeal Judgement para 599 Bla ki Appeal Judgement para 702 See also Kupreškić et al Appeal Judgement para 430 Prosecutor v Biljana Plav i Case Nos IT-00-39-S IT-00-40 1-S Sentencing Judgement 27 February 2003 para 84 Bla ki Trial Judgement para 776 Kunarac et al Trial Judgement para 868 Serushago Sentencing Appeal Judgement para 24 1262 175 Case No IT-98-29-A 30 November 2006 circumstances of the case be taken into account in mitigation of the sentence 1270 However where there is no indication of such willingness to surrender voluntarily Trial Chambers correctly exercise their discretion in not taking into account such a factor in mitigation of sentence To do so would involve the Trial Chamber in speculation as to whether or not the accused would in fact have surrendered voluntarily 427 The Appeals Chamber finds that the Trial Chamber did not commit a discernible error when it did not take into account any possible willingness on the part of Gali to surrender voluntarily because it was not presented with any evidence in support thereof ii Family situation 428 Galić submits that the Trial Chamber erroneously found his family situation to be “not so atypical” as to warrant consideration as a mitigating circumstance 1271 He argues that the Trial Chamber should have accepted his family situation as a mitigating circumstance as the facts indicate that he does not have any prejudice towards people of different nationality ethnicity or religion 1272 The Prosecution responds that the Trial Chamber was apprised of and made reference to Galić’s family situation 1273 and that in any case lack of discriminatory motives could be no more than a neutral factor 1274 It argues that as a result there is no error in the Trial Chamber’s assessment that his situation was not atypical and does not warrant a reduction in sentence 1275 429 The Appeals Chamber understands Galić’s submission regarding his “family” situation to be limited to the argument that he never discriminated against anybody The Appeals Chamber finds that Galić’s argument is misconceived Respect towards all people regardless of their nationality ethnicity or religion is the demeanour expected of any individual and does not constitute a factor to be considered in mitigation of sentence 1276 As such the Trial Chamber correctly found that this circumstance “is not so atypical that it is a relevant factor in this case to go towards mitigating Galić’s sentence” 1277 1270 In the cases of Obrenovi and Deronji the accused had indicated their willingness to surrender voluntarily before the arrest and the Trial Chambers accordingly accorded some weight to this mitigating circumstance See Prosecutor v Miroslav Deronji Case No IT-02-61-S Sentencing Judgement 30 March 2004 paras 266-267 Prosecutor v Dragan Obrenović Case No IT-02-60 2-S Sentencing Judgement 10 December 2003 para 136 1271 Defence Appeal Brief para 577 1272 Defence Appeal Brief para 577 1273 Prosecution Response Brief para 18 24 1274 Prosecution Response Brief para 18 24 1275 Prosecution Response Brief para 18 25 1276 On the contrary a discriminatory motive should be considered as an aggravating circumstance where it is not an element of the crime See Vasiljevi Appeal Judgement paras 172-173 Kunarac et al Appeal Judgement para 357 citing Tadi Appeal Judgement para 305 1277 Trial Judgement para 766 176 Case No IT-98-29-A 30 November 2006 iii Cooperation with UNPROFOR and the international community 430 Galić argues that the Trial Chamber failed to take into account his “very good cooperation” with the members of UNPROFOR which caused him problems with local authorities and his superiors 1278 Furthermore he argues that he fully cooperated with the international community after the war 1279 and that he has cooperated with the Prosecution through his defence team 1280 The Prosecution responds that Galić’s contentions regarding cooperation with UNPROFOR and other international bodies are unsubstantiated 1281 and even if such cooperation did occur there is no reason why such normal discharge of his professional tasks should be regarded as mitigating 1282 431 The Appeals Chamber notes that the Trial Chamber referred to the arguments put forward by Galić which is prima facie evidence that it considered his submission 1283 The Appeals Chamber finds that Gali failed to show that the Trial Chamber ventured outside its sentencing discretion by not considering his cooperation with UNPROFOR as a mitigating circumstance 432 With respect to his cooperation even after the war with representatives of the international community Gali himself notes that “he performed his duties in a professional manner” 1284 As such the fact that he as a professional soldier cooperated with the international community is not a factor that the Trial Chamber had to take into account as a mitigating circumstance In addition the Appeals Chamber notes that this argument was not put forward at trial An appellant cannot expect the Appeals Chamber to consider mitigating circumstances evidence of which was available but not introduced at trial for the first time on appeal iv Cooperation with the Prosecution 433 Gali submits that he has cooperated with the Prosecution through submitting a large number of military documents 1285 The Prosecution responds that this argument should be rejected as Gali is in effect arguing that presenting evidence in his defence is a mitigating circumstance 1286 434 The Appeals Chamber recalls that substantial cooperation with the Prosecution is a mitigating circumstance that has to be taken into account when assessing the sentence 1287 However the Appeals Chamber notes that Gali ’s putative co-operation with the Prosecution has not been 1278 Defence Appeal Brief para 579 Defence Appeal Brief para 580 1280 Defence Appeal Brief para 582 1281 Prosecution Response Brief paras 18 27-18 30 1282 Prosecution Response Brief para 18 31 1283 Trial Judgement para 755 1284 Defence Appeal Brief para 580 1285 Defence Appeal Brief para 582 1286 Prosecution Response Brief para 18 32 1279 177 Case No IT-98-29-A 30 November 2006 substantiated in the Defence Appeal Brief as there is only a reference to a “large number” of military documents without naming those documents nor providing any indication as to their content 1288 In any case the Appeals Chamber notes that no argument was put forward in Galić’s Final Trial Brief in this regard Gali cannot expect the Appeals Chamber to consider evidence of mitigating circumstances for the first time on appeal that was readily available at trial v Illness and exemplary conduct in the UNDU 435 Gali argues that his illness and his exemplary conduct throughout detention should be taken into account as mitigating circumstances 1289 The Prosecution responds that there is no evidence to support Galić’s reference to his alleged illness 1290 In any case poor health is to be considered only in exceptional cases and Gali ’s condition is not exceptional 1291 Further it argues Galić has not pointed to relevant evidence before the Trial Chamber regarding his conduct in the UNDU 1292 The matter was not raised in his Final Trial Brief or closing submissions and he is unable to show that the Trial Chamber erred by not considering the issue 1293 436 The Appeals Chamber reiterates that “ p oor health is to be considered only in exceptional or rare cases” 1294 The Appeals Chamber finds that Galić has failed to demonstrate that his health was exceptionally poor In addition this factor was not raised in his sentencing submissions at trial and the Appeals Chamber is not the appropriate forum to do so for the first time The same reasoning applies mutatis mutandis to Galić’s argument with regard to his alleged exemplary conduct in the detention unit His arguments under that part of his nineteenth ground of appeal are accordingly dismissed 5 Whether the mode of liability influences the sentence of an accused 437 Gali argues that should the Appeals Chamber find Article 7 1 of the Statute inapplicable and rather apply Article 7 3 of the Statute his responsibility would be considerably lessened and 1287 Rule 101 B ii of the Rules Defence Appeal Brief para 582 1289 Defence Appeal Brief para 585 1290 Prosecution Response Brief para 18 40 1291 Prosecution Response Brief paras 18 41-18 42 citing Blaškić Appeal Judgement para 696 and Krstić Trial Judgement para 271 1292 Prosecution Response Brief para 18 43 1293 Prosecution Response Brief para 18 43 1294 Bla ki Appeal Judgement para 696 1288 178 Case No IT-98-29-A 30 November 2006 that this should in turn be reflected in the sentence 1295 Since the Appeals Chamber has found Article 7 1 applicable however the Appeals Chamber need not consider this argument C Prosecution’s appeal against sentence 438 The Prosecution argues that the sentence handed down by the Trial Chamber “falls outside the discretionary range which was available for the Trial Chamber”1296 and “clearly does not reflect the extreme gravity of the crimes and his high ranking position” 1297 It argues that Galić’s crimes are among the worst to come before the Tribunal and therefore that the Trial Chamber committed a discernible error by not imposing the Tribunal’s highest sentence 1298 In its view where a crime was committed under “particularly aggravating circumstances” it would fall in a “‘worst case’ category” 1299 Claiming that Galić’s crimes “clearly”1300 fall within such “‘worst case’ category” and pointing to the gravity of the crimes and Gali ’s high-ranking position 1301 the Prosecution requests the Appeals Chamber to revise the sentence to life imprisonment 1302 439 Galić responds that the Prosecution’s appeal is “groundless” as the Prosecution has failed to identify any error on the part of the Trial Chamber 1303 He claims that “ m andatory pronouncement of the highest sentence for the ‘worst’ criminal cases without determining all the other circumstances connected with the person of the Accused would lead to a total negation of the principle of individualization of the sentence” 1304 which is “one of the fundamental principles of sentencing in criminal law” 1305 440 The Prosecution replies that it did not fail “to consider the individualisation of sentence”1306 and that its proposed imposition of a life sentence “is not solely due to the gravity of the crime but due to the gravity of the crime the role and participation of Galić the aggravating factors and the lack of mitigating factors” 1307 1295 Defence Appeal Brief paras 583-584 Prosecution Appeal Brief para 2 3 1297 Prosecution Appeal Brief para 2 9 see also ibid paras 2 1 3 1 1298 Prosecution Appeal Brief paras 2 3 2 21 1299 Prosecution Appeal Brief para 2 19 1300 Prosecution Appeal Brief sec 2 c 1301 Prosecution Appeal Brief paras 2 27-2 48 1302 Prosecution Appeal Brief paras 2 4 3 5 1303 Defence Response Brief para 4 1304 Defence Response Brief para 24 1305 Defence Response Brief para 6 1306 Prosecution Reply Brief para 1 39 1307 Prosecution Response Brief para 1 39 1296 179 Case No IT-98-29-A 30 November 2006 1 Preliminary issues 441 The core complaint of the Prosecution is that the sentence rendered by the Trial Chamber is “manifestly inadequate” and that the Trial Chamber committed a “discernible error” as the sentence “does not reflect the entire gravity of the crimes and the high ranking position of Galić ” 1308 The Prosecution claims that for crimes of such severity the sentencing aims of deterrence and retribution can only be achieved through the most severe punishments 1309 Before turning to whether the sentence rendered by the Trial Chamber was unreasonable the Appeals Chamber will first address the other arguments raised by the Prosecution 1 Galić’s case falls within the “worst case” category and 2 a comparison with national practice shows that the crimes committed are “universally condemned as particularly grave” 1310 442 With regard to the Prosecution’s argument that Galić’s case falls within the “worst case” category the Appeals Chamber reiterates that cases cannot be categorised systematically No difference in sentence can be inferred from the category in which a crime falls as the level of gravity in any particular case must be fixed by reference to the circumstances of the case 1311 Trial Chambers have an overriding obligation to individualise a sentence to fit the circumstances of the accused and the gravity of the crime 1312 While deterrence and retribution may be taken into account in sentencing those factors must not be given undue weight in the overall assessment of the sentences to be imposed on persons convicted by the International Tribunal 1313 The Trial Chamber’s duty remains to tailor the penalty to fit the individual circumstances of the accused and the gravity of the crime As noted by the Trial Chamber the gravity of the offence is the primary factor to be taken into account in imposing a sentence 1314 In the present case the Trial Chamber duly took notice of those principles 1315 but the question as to whether it gave them sufficient attention in determining the sentence will be examined below in considering the alleged unreasonableness of the sentence 443 With regard to the Prosecution’s reference to national practice the Appeals Chamber recalls that while some guidance may be found in sentencing practices of systems other than the former Yugoslavia those must not be given undue weight as Trial Chambers are not bound by any 1308 Prosecution Appeal Brief para 2 9 Prosecution Appeal Brief paras 2 12-2 13 3 1 1310 Prosecution Appeal Brief para 2 12 1311 Furundžija Appeal Judgement paras 242-243 referring to paragraph 69 of the Tadić Sentencing Appeal Judgement See also Dragan Nikoli Judgement on Sentencing Appeal para 14 fn 25 1312 Simić Appeal Judgement para 238 Čelebići Appeal Judgement para 717 1313 Aleksovski Appeal Judgement para 185 See also Dragan Nikolić Judgement on Sentencing Appeal para 46 1314 Trial Judgement para 758 1315 Trial Judgement para 757 1309 180 Case No IT-98-29-A 30 November 2006 maximum term of imprisonment applied in a national system 1316 Again the gravity of a crime must be determined by reference to the particular circumstances of the case and the form and degree of the accused’s participation in the crime 1317 2 Whether the sentence rendered was unreasonable 444 In support of its argument that the sentence rendered by the Trial Chamber was unreasonable the Prosecution points to the Trial Chamber’s assessment of the gravity of the crime the aggravating circumstances and the alleged lack of mitigating circumstances The Prosecution does not challenge the Trial Chamber’s findings of fact1318 but rather attempts to demonstrate in view of those facts that the sentence rendered by the Trial Chamber was “manifestly inadequate” The Appeals Chamber will now consider whether the Trial Chamber committed a discernible error in the exercise of its discretion by giving insufficient weight to the gravity of Galić’s conduct 1319 Such an error will exist where the sentence rendered by the Trial Chamber was “so unreasonable or plainly unjust that the Appeals Chamber is able to infer that the Trial Chamber must have failed to exercise its discretion properly” 1320 a The factors put forward by the Prosecution and the findings of the Trial Chamber i The “victimisation” 445 The Prosecution argues that the “victimisation both in terms of scale and choice of victims bespeaks an extraordinary brutality on the part of Galić in ordering and maintaining the campaign in these circumstances” 1321 In its view the “sinister selection of victims and the cowardly nature of such acts seriously aggravate the crimes of Galić ” 1322 446 The first part of the Prosecution’s argument goes to the large number of victims It notes that the “Trial Chamber found that hundreds of civilians were killed by snipers and in mortar attacks on 1316 Tadi Sentencing Appeal Judgement para 21 cited at paragraph 377 of the Kunarac et al Appeal Judgement See also Dragan Nikolić Judgement on Sentencing Appeal para 76 1317 Dragan Nikolić Judgement on Sentencing Appeal para 18 Bla kić Appeal Judgement para 680 Krstić Appeal Judgement para 241 Jelisić Appeal Judgement para 101 Čelebići Appeal Judgement para 731 Aleksovski Appeal Judgement para 182 1318 Prosecution Appeal Brief para 2 3 “the Prosecution does not challenge any of the Trial Chamber’s factual findings” 1319 Aleksosvki Appeal Judgement para 187 See also Gacumbitsi Appeal Judgement paras 205-206 1320 Babi Judgement on Sentencing Appeal para 44 1321 Prosecution Appeal Brief para 2 39 1322 Prosecution Appeal Brief para 2 39 181 Case No IT-98-29-A 30 November 2006 civilians targets” 1323 The Trial Chamber considered the large number of victims when assessing the gravity of the crime In general the Trial Chamber will assess the gravity of the offences proven in this case by taking into account the number of victims the effect of the crimes on the broader targeted group and the suffering inflicted on the victims 1324 The gravity of the offences committed by General Gali is established by their scale pattern and virtually continuous repetition almost daily over many months … 1325 447 The second part of the Prosecution’s arguments goes to the “particular cruelty” of the crimes committed 1326 The Appeals Chamber notes that the Prosecution points to elements referred to in the Trial Judgement that demonstrate such cruelty the crimes were perpetrated against civilians “in the perceived safety of their homes at hospitals schools market places and while commuting through the city” people were targeted “trying to cope with the effects of the war such as mothers fetching water for themselves and their families in rivers and or at water pumps and while attending funerals and going to weddings” and “ e ven children were not spared” 1327 ii The actual infliction of terror on the civilian population of Sarajevo 448 The Prosecution argues that the facts of the case amount to “the most severe crime of terror that in all probability will come before the Tribunal – namely the terrorisation of the population of Sarajevo the largest city in Bosnia-Herzegovina … with about 300 000 civilians at the time” 1328 It notes that although it was not “specifically addressed it is clear that the Trial Chamber accepted the evidence of numerous witnesses who testified that the civilian population of Sarajevo was indeed terrorised” 1329 449 The Appeals Chamber notes that the Trial Chamber indeed held that “ i nhabitants of Sarajevo – men women children and elderly persons – were terrorized” and that “ t his was an anguishing environment in which at a minimum hundreds of men women children and elderly people were killed and thousands were wounded and more generally terrorized” 1330 iii The systematic prolonged and premeditated participation of Galić 1323 Prosecution Appeal Brief para 2 29 Trial Judgement para 758 1325 Trial Judgement para 764 1326 Prosecution Appeal Brief para 2 39 1327 Prosecution Appeal Brief para 2 39 1328 Prosecution Appeal Brief para 2 29 1329 Prosecution Appeal Brief para 2 40 See also Prosecution Reply Brief para 1 31 1330 Trial Judgement para 764 1324 182 Case No IT-98-29-A 30 November 2006 450 The systematic prolonged and premeditated participation of Gali referred to by the Prosecution was taken into account by the Trial Chamber at paragraph 764 of the Trial Judgement where it held that “ t he gravity of the offences committed by General Gali is established by their scale pattern and virtually continuous repetition almost daily over many months ”1331 iv Galić’s position of authority 451 The Prosecution argues that Galić’s abuse of authority is a factor that aggravates his crimes 1332 In particular it points to the fact that “rather than using his senior position as a professional officer to ensure that any military action was carried out lawfully and fought according to the laws and customs of war he gave orders to do the opposite” 1333 452 As noted above in Gali ’s nineteenth ground of appeal the Trial Chamber correctly took into account in paragraph 765 of the Trial Judgement that he repeatedly breached his public duty from his very senior position thereby abusing his position of authority v Mitigating circumstances 453 The Prosecution argues that the Trial Chamber did not find any mitigating circumstances1334 and that therefore “there is nothing that mitigates against the imposition of the highest sentence” 1335 The Appeals Chamber notes however that the Trial Chamber found Galić’s “exemplary behaviour … throughout the proceedings” to be a mitigating circumstance 1336 b Conclusion 454 The Appeals Chamber recalls that the Prosecution does not challenge the Trial Chamber’s findings of fact 1337 In addition to the findings recollected above the Appeals Chamber notes that from 10 September 1992 to 10 August 1994 Galić assumed the post of the commander of the Sarajevo Romanija Corps his superiors being the Chief of Staff of the VRS General Ratko Mladi and the supreme commander of the VRS Radovan Karad i 1338 As such and during a period of 23 1331 Trial Judgement para 764 Prosecution Appeal Brief paras 2 42-2 44 1333 Prosecution Appeal Brief para 2 44 1334 Prosecution Appeal Brief para 2 47 1335 Prosecution Appeal Brief para 2 48 1336 Trial Judgement para 766 1337 See above para 444 1338 Trial Judgement paras 604-607 1332 183 Case No IT-98-29-A 30 November 2006 months he was in charge of continuing the planning and execution of the military encirclement of Sarajevo 1339 The Trial Chamber particularly found The gravity of the offences committed by General Gali is established by their scale pattern and virtually continuous repetition almost daily over many months Inhabitants of Sarajevo – men women children and elderly persons – were terrorized and hundreds of civilians were killed and thousands wounded during daily activities such as attending funerals tending vegetable plots fetching water shopping going to hospital commuting within the city or while at home The Majority of the Trial Chamber also takes into consideration the physical and psychological suffering inflicted on the victims Sarajevo was not a city where occasional random acts of violence against civilians occurred or where living conditions were simply hard This was an anguishing environment in which at a minimum hundreds of men women children and elderly people were killed and thousands were wounded and more generally terrorized 1340 455 Taking into account the above findings of the Trial Chamber the Appeals Chamber by majority Judge Pocar partially dissenting and Judge Meron dissenting finds that the Trial Chamber committed a discernible error in assessing the factors in relation to the gravity of the crime the role and participation of Galić the aggravating circumstance of abuse of Gali ’s position of authority and the single mitigating circumstance regarding his behaviour throughout the proceedings Although the Trial Chamber did not err in its factual findings and correctly noted the principles governing sentencing it committed an error in finding that the sentence imposed adequately reflects the level of gravity of the crimes committed by Galić and his degree of participation The sentence rendered was taken from the wrong shelf Galić’s crimes were characterized by exceptional brutality and cruelty his participation was systematic prolonged and premeditated and he abused his senior position of VRS Corps commander In the Appeals Chamber’s view the sentence imposed on Galić by the Trial Chamber falls outside the range of sentences available to it in the circumstances of this case The Appeals Chamber considers that the sentence of only 20 years was so unreasonable and plainly unjust in that it underestimated the gravity of Galić’s criminal conduct that it is able to infer that the Trial Chamber failed to exercise its discretion properly 456 Accordingly the Appeals Chamber finds that the Trial Chamber abused its discretion in imposing a sentence of only 20 years and allows the Prosecution’s appeal 1339 1340 Trial Judgement para 609 Trial Judgement para 764 184 Case No IT-98-29-A 30 November 2006 XVIII DISPOSITION For the foregoing reasons THE APPEALS CHAMBER PURSUANT to Article 25 of the Statute and Rules 117 and 118 of the Rules of Procedure and Evidence NOTING the respective written submissions of the Parties and the arguments they presented at the hearing of 29 August 2006 SITTING in open session DISMISSES Galić’s appeal ALLOWS by majority Judge Pocar partially dissenting and Judge Meron dissenting the Prosecution’s appeal QUASHES the sentence of twenty years’ imprisonment imposed on Galić by the Trial Chamber and IMPOSES a sentence of life imprisonment subject to credit being given under Rule 101 C of the Rules for the period Gali has already spent in detention ORDERS in accordance with Rule 103 C and Rule 107 of the Rules that Gali is to remain in the custody of the International Tribunal pending the finalisation of arrangements for his transfer to the State in which his sentence will be served Done in English and French the English text being authoritative ____________________ ____________________ ____________________ Judge Fausto Pocar Judge Mohamed Shahabuddeen Judge Mehmet Güney Presiding ____________________ ____________________ Judge Theodor Meron Judge Wolfgang Schomburg Judge Fausto Pocar appends a partially dissenting opinion Judge Mohamed Shahabuddeen appends a separate opinion Judge Theodor Meron appends a separate and partially dissenting opinion Judge Wolfgang Schomburg appends a separate and partially dissenting opinion Dated this 30th day of November 2006 At The Hague The Netherlands Seal of the International Tribunal 185 Case No IT-98-29-A 30 November 2006 XIX PARTIALLY DISSENTING OPINION OF JUDGE POCAR 1 I am in agreement with the majority that the Trial Chamber committed a discernible error in the exercise of its discretion when it found that a sentence of 20 years imposed on Galić adequately reflected the number and gravity of the crimes committed by him and his degree of participation during the military encirclement of Sarajevo from 10 September 1992 to 10 August 1994 Although the Trial Chamber neither made an error of fact in determining the sentence nor misstated the law with respect to sentencing it abused its discretion in assessing all of the relevant sentencing factors in relation to the gravity of Galić’s criminal conduct Under the circumstances of this case it can be inferred that the sentence imposed is unreasonable and plainly unjust in light of the Trial Chamber’s finding which we affirm on appeal that as a result of Galić’s conduct over the course of 23 months “ i nhabitants of Sarajevo – men women children and elderly persons – were terrorized and hundreds of civilians were killed and thousands wounded during daily activities such as attending funerals tending vegetable plots fetching water shopping going to hospital commuting within the city or while at home ”1 Thus in this situation the Appeals Chamber has the power to intervene under the Statute and Rules of the International Tribunal in order to ensure that the Trial Chamber’s error is corrected 2 However I part ways with the majority where it finds that the Appeals Chamber as the Chamber of last resort in this International Tribunal may itself correct such an error committed by a Trial Chamber by revising and increasing the sentence entered against an accused at trial For the reasons emphasized in my dissents in Prosecutor v Rutaganda2 and Prosecutor v Semanza 3 the Appeals Chamber is bound to uphold an accused’s right of appeal enshrined in international law as reflected in Article 14 5 of the International Covenant on Civil and Political Rights “ICCPR” Thus the modalities of the Appeals Chamber’s intervention under Article 25 2 of the Statute of the International Tribunal to correct errors committed by a Trial Chamber must be interpreted so as to comply with the fundamental human rights principle that any conviction and or sentence must be capable of review by a higher tribunal according to law 4 While Article 25 1 of our Statute affords the Prosecution the possibility of lodging an appeal that seeks an increase in sentence this provision does not allow for an exception to the Appeals Chamber’s obligation to guarantee the fundamental right of appeal under Article 14 5 of the ICCPR As stated by the Human Rights Committee of the ICCPR although the applicable law in a jurisdiction may allow for a person to be convicted and 1 Trial Judgement para 764 Case No ICTR-96-3-A Judgement 26 May 2003 3 Case No ICTR-97-20-A Judgement 20 May 2005 4 Art 14 5 of the ICCPR states that “ e veryone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law ” 2 186 Case No IT-98-29-A 30 November 2006 sentenced at first instance by the higher court in that jurisdiction “this circumstance alone cannot impair the defendant’s right to review of his conviction and sentence by a higher court ”5 3 Consequently where the Appeals Chamber finds as it does in this case that the Trial Chamber erred by imposing a sentence that was inadequate for fully reflecting the gravity of the crimes committed by an accused the only avenue available to the Appeals Chamber is to quash the Trial Chamber’s sentence and remit it back to the Trial Chamber under Rule 118 C of the Rules6 for a redetermination of the sentence consistent with the Appeals Chamber’s decision Such an approach is in line with that taken by the Appeals Chamber in Čelebići wherein the Chamber reasoned that some issues such as determination of sentence are of such significance that they should not be decided by a Chamber from which it is impossible to exercise one’s right to an appeal 7 4 Remitting to the Trial Chamber for a redetermination of sentence in order to ensure that the right to appeal against sentence is upheld is especially important where as here the Appeals Chamber does not consider that the Trial Chamber merely erred by improperly taking into account one of the sentencing factors at issue or made an error as to some of the facts upon which it exercised its discretion or failed to correctly note one or more of the legal principles governing sentencing Rather in this case the Appeals Chamber finds that the Trial Chamber completely erred in its determination of an appropriate sentence even though it properly took into account all of the relevant sentencing factors due to the fact of the extremely grave nature of the crimes committed In other words the Appeals Chamber considers that the sentence must be wholly reassessed Such a de novo reassessment must be made by a Trial Chamber as the Chamber with primary responsibility for evaluating the evidence and with broad discretion to fulfil its obligation to individualize the penalties to fit the circumstances of the accused and the gravity of the crime Furthermore such a complete reassessment makes it all the more imperative that the resulting sentence be subject to review by a higher court in other words the Appeals Chamber 5 For these reasons I respectfully dissent Done in English and French the English text being authoritative 5 Communication No 1095 2002 Gomaríz v Spain 26 August 2005 Rule 118 C provides that “ i n appropriate circumstances the Appeals Chamber may order that the accused be retried before the Trial Chamber ” 7 Prosecutor v Delalić et al Case No IT-96-21-A Judgement 20 February 2001 “Čelebići Appeal Judgement” para 711 6 187 Case No IT-98-29-A 30 November 2006 Done this 30th day of November 2006 _____________________ At The Hague Fausto Pocar The Netherlands Judge Seal of the International Tribunal 188 Case No IT-98-29-A 30 November 2006 XX SEPARATE OPINION OF JUDGE SHAHABUDDEEN 1 I support the outcome of today’s judgement I shall give my views on i whether the Tribunal has competence over treaty-based crimes ii whether “terror” is a crime known to customary international law and iii whether the Appeals Chamber should allow the prosecution’s appeal against sentence A Whether the Tribunal has competence over treaty-based crimes 2 In paragraph 85 of its judgement the Appeals Chamber “rejects Galić’s argument that the International Tribunal’s jurisdiction for crimes under Article 3 of the Statute can only be based on customary international law” But the paragraph goes on to state that “in practice the International Tribunal always ascertains that the treaty provision in question is declaratory of custom” Recalling the essence of Pascal’s wager that paragraph seeks to have the best of both worlds Whatever the theory it acknowledges that the Tribunal does not in fact exercise jurisdiction over crimes created by treaty unless they are known to customary international law I agree with that acknowledgement except that I would say that the Tribunal does not exercise jurisdiction over purely treaty-based crimes because it cannot it has no such jurisdiction I reserve my reasons for saying that B Whether “terror” is a crime known to customary international law 3 I agree with the view that terror as charged is a crime known to customary international law I only wish to indicate my understanding that the Appeals Chamber in taking up that position is not suggesting that a comprehensive definition of terror is known to customary international law the Appeals Chamber is really speaking of a core concept The international community is divided on important aspects of the question with the result that there is neither the required opinio juris nor state practice to support the view that customary international law knows of a comprehensive definition The developing state of the law gives reason for caution The perils of going forward in haste were presumably in the mind of Judge Petrén when on another matter he referred to what he regarded as a request for the International Court of Justice “to pronounce upon the future of a customary law in active evolution” 1 4 However that need not prevent the Tribunal from recognising that customary international law does know of a core or predominant meaning of “terror” for which there was individual 189 Case No IT-98-29-A 30 November 2006 criminal responsibility at the material times Such a limited view need not trench on the controversy as to what is a comprehensive definition of “terror” 2 That controversy is not involved in this case pertinent issues have not been raised and the Appeals Chamber is not called upon to navigate between them 5 There is of course a question whether there is individual criminal responsibility as opposed to state responsibility at customary international law I take guidance from Oppenheim’s statement that “it is an established principle of customary international law that individual members of armed forces of the belligerents – as well as individuals generally – are directly subject to the law of war and may be punished for violating its rules” 3 I am satisfied that a serious violation of “the laws or customs of war” within the meaning of article 3 of the Statute namely by resorting to the core of terror gives rise to such responsibility 4 I am also satisfied that this responsibility existed at the time of the alleged acts of the appellant C Whether the Appeals Chamber should allow the prosecution’s appeal against sentence 6 The Trial Chamber by majority sentenced the appellant to 20 years’ imprisonment The prosecution has appealed against the sentence criticising it as manifestly inadequate to the gravity of the crime and asking for a life sentence There are two points on which I propose to speak namely a the competence of the Appeals Chamber to convict and to sentence and b the appellate evaluation of the gravity of a crime 1 Fisheries Jurisdiction United Kingdom v Iceland Merits 25 July 1974 1974 ICJ 55 at 158-159 It is apposite also to recall Montesquieu’s general warning when speaking of the laws he said that “il n’y faut toucher que d’une main tremblante ” Montesquieu Lettres persanes lettre LXXIX 2 The principal problems concern the subject of state terrorism as well as the question whether there is terrorism in the case of force employed by a national liberation movement For these and other reasons the tendency has been in the direction of making terrorism conventions on particular subjects See the list given in the first preambular paragraph of Annex I to Report of the Ad Hoc Committee established by General Assembly resolution 51 210 of 17 December 1996 Sixth Session 28 January-1 February 2002 GAOR 57th Session Supplement No 37 A 57 37 Discussions on a Draft Comprehensive Convention on International Terrorism have not yet been completed An Ad Hoc Committee met from 27 February 2006 to 3 March 2006 see GAOR sixty-first Session Supplement No 37 A 61 37 See also Ben Saul “Defining ‘Terrorism’ to Protect Human Rights” – A Working Paper Madrid February 2006 3 Jennings Watt eds Oppenheim’s International Law 9th ed Vol I New York Longman 1996 p 17 para 7 Further discussion at page 505 para 148 relates individual criminal responsibility to “much of the law of war” but I have no doubt that the instant conduct would be caught by what applies as involving a serious breach of international humanitarian law 4 See generally Tadić Case No IT-94-1-AR-72 Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction 2 October 1995 “Tadić Jurisdiction Decision” paras 128 ff and in particular para 129 Akayesu Case No ICTR-96-4A Judgement paras 611-617 190 Case No IT-98-29-A 30 November 2006 1 The competence of the Appeals Chamber to convict and to sentence 7 My views on the general subject of the competence of the Appeals Chamber to convict and to sentence notwithstanding that there is no right of appeal from the Appeals Chamber have been given before 5 It is however useful to consider some aspects of that question 8 Under the heading “Status of the Acquitted Person” Rule 99 B of the Rules of Procedure and Evidence of the Tribunal reads If at the time the judgement is pronounced the Prosecutor advises the Trial Chamber in open court of the Prosecutor’s intention to file notice of appeal pursuant to Rule 108 the Trial Chamber may on application in that behalf by the Prosecutor and upon hearing the parties in its discretion issue an order for the continued detention of the accused pending the determination of the appeal Correspondingly Rule 118 reads A A sentence pronounced by the Appeals Chamber shall be enforced immediately B Where the accused is not present when the judgement is due to be delivered either as having been acquitted on all charges or as a result of an order issued pursuant to Rule 65 or for any other reason the Appeals Chamber may deliver its judgement in the absence of the accused and shall unless it pronounces an acquittal order the arrest or surrender of the accused to the Tribunal 9 The substantive origin of these provisions lay in the Second Plenary of the Tribunal held in February 1994 – almost at the commencement of the life of the Tribunal Ever since then in their legislative capacity the judges of the Tribunal have been affirming that in their understanding of the Statute the Appeals Chamber has competence to convict and to sentence even though on the one hand there is no right of appeal from the Appeals Chamber and on the other the sentencing is not done on remand to a Trial Chamber Of course it is open to the judges in their judicial capacity to hold that they were wrong in taking that view However in my opinion those Rules are intra vires I do not understand them to be under question 10 Proponents of a right of appeal make two suggestions The first is that an appeal from one bench of the Appeals Chamber may be taken to another bench of that Chamber That was done in one case 6 But in relation to the first bench the second bench will not be a “higher tribunal” within 5 Rutaganda Case No ICTR-96-3-A Judgement 26 May 2003 “Rutaganda Appeal Judgement” Separate Opinion of Judge Shahabuddeen 6 Tadić Case No IT-94-1-A-AR77 Appeal Judgement on Allegations of Contempt against Prior Counsel Milan Vujin 27 February 2001 “Tadić Contempt Appeal” 191 Case No IT-98-29-A 30 November 2006 the meaning of article 14 5 of the International Covenant on Civil and Political Rights which provides that “everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law” The bench appealed to can only become a “higher tribunal” by the exercise of a competence to make structural changes to the Tribunal which the judges lack under the rule-making power which has been entrusted to them by article 15 of the Statute A decision of the first bench cannot be overridden on appeal as distinguished from review or reconsideration by a decision of the second bench for the purposes of an appeal there is no supporting vinculum juris between the two benches Since both benches represent the same Appeals Chamber the appeal would be an appeal from Caesar to Caesar Thus there could be two possibly divergent decisions of the same authority on the same matter 11 I respectfully agree with the dissent of Judge Wald in Vujin in which she said that article 25 of the Statute “nowhere states that an appeal may be taken from one duly constituted Appeals Chamber to another duly constituted Appeals Chamber and I do not think we have the power to create such a two-level process in that Chamber on our own” 7 That Rule 77 K of the Rules of Evidence and Procedure was later introduced to accommodate the position cannot get over these constitutional hurdles I do not propose to discuss further the improbability of the procedure of taking an appeal from one bench of the Appeals Chamber to another bench of the Appeals Chamber 8 12 The second suggestion says that the Appeals Chamber has to remand the case to a Trial Chamber for the latter to pass on sentencing thus preserving a right of appeal to the Appeals Chamber from the decision of the Trial Chamber In my opinion it is competent for the Appeals Chamber to make a remand but that course is confined to quantum and does not touch controlling principles further it is not mandatory 13 In Tadić9 the Appeals Chamber initially intended to sentence itself Later it remitted sentencing to the Trial Chamber Its order stated NOTING the oral arguments of the parties on 30 August 1999 whereby they indicated that they recognised the competence of the Appeals Chamber itself to pronounce sentences but considered that the Appeals Chamber was also 7 Ibid Separate Opinion of Judge Wald pp 1-2 For my views see Rutaganda Appeal Judgement Separate Opinion of Judge Shahabuddeen 9 Prosecutor v Tadić Case No IT-94-1-A Order Remitting Sentencing to a Trial Chamber 10 September 1999 See also Tadić IT-94-1-A and IT-94-1-Abis Judgement in Sentencing Appeals 26 January 2000 para 8 last sentence 8 192 Case No IT-98-29-A 30 November 2006 competent to remit sentencing to a Trial Chamber which latter course they considered preferable in the circumstances of the case 10 14 It is a reasonable inference that the Appeals Chamber did not consider that it was required to abstain from sentencing The Appeals Chamber is competent to remit but is not obliged to do so its competence is discretionary Even more interesting is the fact that the Appeals Chamber made convictions on certain counts of the indictment in lieu of acquittals by the Trial Chamber 11 there was of course no question of an appeal from the convictions by the Appeals Chamber 15 The discretion of the Appeals Chamber to remit is exercised by reference to the need of the Appeals Chamber for the assistance of the Trial Chamber This was the approach taken by the Appeals Chamber in Čelebići 12 Thus for example in paragraph 3 of its disposition it said T he Appeals Chamber FINDS that the Trial Chamber erred in making adverse reference when imposing sentence to the fact that Mucić had not given oral evidence in the trial and it DIRECTS the Reconstituted Trial Chamber to consider the effect if any of that error on the sentence to be imposed on Mucić 16 The remand was not made in order to preserve the right of appeal When the Trial Chamber decided there would of course be a right of appeal to the Appeals Chamber But what is clear is that sentencing could be done by the Appeals Chamber itself In fact in paragraph 4 of its disposition in Čelebići the Appeals Chamber remitted sentencing to the Trial Chamber “with the indication that had it not been necessary to take into account a possible adjustment in sentence because of certain matters … it would have imposed a sentence of around ten years” 13 Had the Appeals Chamber determined the sentence itself it is clear that there would have been no right of appeal from its decision The Appeals Chamber did not take the position that in all cases it had to remand the fixing of sentence to a Trial Chamber 17 Where there are no circumstances to be investigated and evaluated by a Trial Chamber there is no need for a remand In this case all the circumstances have been investigated and evaluated by the Trial Chamber they are now before the Appeals Chamber The Appeals Chamber may act self-sufficiently In Aleksovski the Appeals Chamber itself increased the sentence from two 10 Ibid p 3 See also Tadić Case No IT-94-1-A Judgement 15 July 1999 para 327 6 Tadić Case No IT-94-1Tbis-R117 Sentencing Judgement 11 November 1999 para 3 Tadić Case No IT-94-1-A and IT-94-1-Abis Judgement in Sentencing Appeals paras 8 and 9 See also Rutaganda Appeal Judgement Separate Opinion of Judge Shahabuddeen footnote 30 11 Tadić IT-94-1-A and IT-94-1-Abis Judgement in Sentencing Appeals 26 January 2000 para 8 12 Delalić et al IT-96-21-A Judgement 20 February 2001 “Čelebići Appeal Judgement” 13 Ibid part XV para 4 of “Disposition” pp 306-307 193 Case No IT-98-29-A 30 November 2006 and a half years’ imprisonment to seven years’ imprisonment it did not seek the assistance of a Trial Chamber That case was cited approvingly by the Appeals Chamber in paragraph 12 of its judgement in Mucić14 in which the Appeals Chamber stated with reference to Aleksovski that “ w ithout hearing the parties further and without further evidence the Appeals Chamber was able to revise the sentence imposed by the Trial Chamber by increasing it” 18 The view that the Appeals Chamber cannot itself sentence in the absence of a right of appeal would rely on the decisions of the United Nations Human Rights Committee in Salgar de Montego v Colombia 15 Jesús Terrón v Spain16 and Gomariz Valera v Spain17 Those decisions are interesting but are not determinative of the present case They need to be qualified to accommodate the characteristics of an international criminal tribunal as distinguished from the national judicial bodies to which they applied 19 It is good jurisprudence that particular provisions of internationally recognised human rights instruments do not apply to the Tribunal lock stock and barrel it is superfluous to cite authority What applies is the substance of the standards – or goals – set by the provisions of those instruments not the provisions themselves The supreme goal is fairness that is sought to be ensured inter alia by provisions requiring a right of appeal However in certain circumstances that goal can be satisfied even in the absence of a right of appeal from a conviction or sentence by the Appeals Chamber 20 A sentence reflects the court’s assessment of the measure of punishment merited The object of a guarantee of a right of appeal from sentence is to ensure a right to argue that question before a “higher tribunal” namely what should be the proper measure of the punishment merited In this case the question raised by the prosecution on appeal was not a new one It was the same as the question before the Trial Chamber what is the proper measure of the punishment merited by the acts of the accused The appellant had a right to argue that question both at trial and on appeal and he did argue it in both fora The substance of his rights has been respected 21 Even in cases in which it cannot be said that the accused had a right to argue the substance of the question both at trial and on appeal such as a contempt of the Appeals Chamber which is dealt with by the Appeals Chamber itself an absence of a right of appeal is not necessarily fatal 14 Mucić et al Case No IT-96-21-Abis Judgement on Sentencing Appeal 8 April 2003 Communication No 64 1979 24 March 1982 para 3 2 16 Communication No 1073 3002 15 November 2004 para 3 1 17 Communication No 1095 2002 26 August 2005 para 3 3 15 194 Case No IT-98-29-A 30 November 2006 The governing criterion is fairness Whether fairness exists has to be determined in the circumstances of the case Fairness can exist in the absence of a right of appeal where a first conviction is made by the most senior judicial body Consider the following 22 As Čelebići18 shows the Appeals Chamber may attach conditions to the remission it may for example say that the new sentence should be within certain parameters An appeal from the judgement of the Trial Chamber cannot challenge the applicability of those parameters they were not decided by the Trial Chamber The fairness of the Appeals Chamber’s adjudication of that important matter will have to be accepted as an adjudication by the most senior judicial body 23 Even if the Appeals Chamber attaches no parameters to the remission the remission falls to be understood as saying to the Trial Chamber that the Appeals Chamber is of opinion that there is merit in the appeal against adequacy of sentence Or else why remit After all the Appeals Chamber could have dismissed the appeal In effect the Trial Chamber is being confined to quantum That important and indeed fundamental aspect as to whether there is merit in the appeal not having been decided by the Trial Chamber will remain outside of any future appeal from the decision of the Trial Chamber it has to be accepted although it is not subject to a right of appeal I do not consider that this argument is met by a proposal that the Appeals Chamber should quash the sentence and then remit it to the Trial Chamber quashing the sentence shows that in the opinion of the Appeals Chamber there is merit in the prosecution’s appeal 24 In my view there is an ineradicable limit to the extent to which the Appeals Chamber can be divested of jurisdiction to decide without there being a right appeal from its decision 25 Further internationally recognised human rights instruments were made by states for states The Tribunal is not a state and is not party to those instruments There is no way for example by which the Tribunal can become a party to the Optional Protocol to the International Covenant on Civil and Political Rights In an important sense the United Nations Human Rights Committee set up in part IV of the Covenant is part of the judicial structure of states parties to the Covenant 19 The Committee is not part of the structure of the Tribunal It is right that the principles of international 18 Čelebići Appeal Judgement The United Nations Human Rights Committee may not be a judicial body See Dominic McGoldrick The Human Rights Committee Oxford 1994 p 54 para 2 21 Sarah Joseph et al The International Covenant on Civil and Political Rights Oxford Oxford University Press 2000 p 14 para 1 33 Compare Tavita v Minister of Immigration 1994 2 NZLR 257 in which however Cooke P was right in saying that “an aspect to be borne in mind may be one urged by counsel for the appellant that since New Zealand’s accession to the Optional Protocol the United Nations Human Rights Committee is in a sense part of this country’s judicial structure …” 19 195 Case No IT-98-29-A 30 November 2006 human rights instruments are extended to the Tribunal but the extension has to be interpreted as itself authorising appropriate allowances to be made to reflect the differences between the Tribunal and a state Therefore assuming that those instruments always prohibit the making of an increase in sentence by a final appellate court 20 different provisions could be made in the case of the Tribunal 26 Alternatively the Statute of the Tribunal has to be read as equivalent to a reservation to the International Covenant on Civil and Political Rights on the point in question Gomariz Valera’s case recognised that a first conviction by a final court of appeal is possible in the absence of a right of appeal if there is “a reservation by a State party” 21 Judge Wald observed in her dissenting opinion in the Tadić contempt case that “a number of Western European States have submitted reservations to Article 14 5 of the Covenant to make it clear that an appellate court may impose an aggravated sentence without giving rise to a further right of appeal although there was no consensus that such a reservation was strictly necessary” 22 The number of reservations was indicative of an existing practice of some states The Tribunal not being a state cannot make a reservation but its Statute may be treated as having the effect of one 27 The Tribunal has jurisdiction under article 25 2 of its Statute to “revise the decisions taken by the Trial Chambers” Under that provision the Appeals Chamber is competent to substitute a conviction for an acquittal Sentencing though a separate and distinct process is a logical and necessary consequence of conviction The Appeals Chamber is therefore competent to increase a sentence even though there is no right of appeal from its decision It has done so in the past both in the case of the ICTY Appeals Chamber23 and in the case of the ICTR Appeals Chamber 24 28 I pause to observe that although Mr Galić has also appealed there is no question of an increase being ordered pursuant to his appeal There is no need therefore to consider the legality of a sentence being increased on appeal by the convicted person alone – the usual subject of the doctrine of reformatio in pejus 20 As to the correctness of the assumption see Rutaganda Appeal Judgement Separate Opinion of Judge Shahabuddeen 21 Communication No 1095 2002 26 August 2005 para 7 1 22 Tadić Contempt Appeal Separate Opinion of Judge Wald p 3 23 See e g Krnojelac IT-97-25A Judgement 17 September 2003 Aleksovski IT-95-14 1 Judgement 24 March 2000 “Aleksovski Appeal Judgement” 24 See e g Gacumbitsi ICTR-2001-64-A Judgement 7 July 2006 “Gacumbitsi Appeal Judgement” para 206 196 Case No IT-98-29-A 30 November 2006 29 Thus I do not accept that there is any human right which prevents the Appeals Chamber from increasing sentence or that the decisions of the United Nations Human Rights Committee or of other similar bodies are controlling – though of course they are entitled to respect 2 30 Appellate evaluation of the gravity of a crime All members of this bench of the Appeals Chamber consider that if they had to determine sentence as a trial judge they would or might have awarded a higher sentence than that imposed by the Trial Chamber One colleague who dissents on the ground that the case should be remitted to a Trial Chamber says “that the sentence imposed is unreasonable and plainly unjust in light of the Trial Chamber’s finding which we affirm on appeal …” 25 Another dissenting colleague while he could not say that all reasonable triers of fact were obligated to take the same view states “ H ad I sat as a Trial Judge I might have called for a sentence of a longer term than 20 years” 26 31 However it is trite that sentencing is a matter of discretion to be exercised by the trial court in accordance with certain legal principles An appellate court like the Appeals Chamber does not “conduct a sentencing exercise of its own from the beginning” 27 The test of appellate intervention is not mere disagreement with the result reached by the trial court in the exercise of its discretion but whether the trial court committed an error in exercising its discretion in that it violated an applicable legal principle Consequently the mere fact that the Appeals Chamber considers that the sentence was lenient does not warrant intervention a “discernible error” would have to be shown 32 Nevertheless the Appeals Chamber would be entitled to take the position that if a very substantial increase were judged to be merited what this proves is that the Trial Chamber committed a “discernible error” in assessing sentence in particular it could have misjudged the gravity of the crimes which is the ground of the prosecution’s appeal 33 Though the substance of sentencing is a matter for the Trial Chamber in considering whether the Trial Chamber has committed a discernible error in sentencing the Appeals Chamber has to bear in mind that as it was said in a court of appeal “ o ur function essentially is to consider whether or not the punishment does fit these crimes … It is the function of this Court to have regard to the victims and the consequences on the victims It is the function of this Court to reflect 25 Partially Dissenting Opinion of Judge Pocar para 1 Separate and Partially Dissenting Opinion of Judge Meron para 12 27 R v A and B 1999 1 Cr App R S 52 56 26 197 Case No IT-98-29-A 30 November 2006 the public condemnation for offences of this kind” 28 If the sentence imposed by the trial court does not meet those criteria there could be appellate intervention As to the bases on which there could be such intervention on the one hand a court of appeal “will conclude that if the sentence is manifestly excessive there must have been an error in principle” 29 On the other hand the opposite approach seems correct in a case in which there is power to increase sentence the test as to whether the sentence was manifestly inadequate is an admissible one 34 The foregoing was the approach taken by the prosecution In paragraph 2 3 of its Appeal Brief it stated footnote omitted In this appeal the Prosecution does not challenge any of the Trial Chamber’s factual findings rather it submits that the sentence handed down by the Trial Chamber when considered against this factual background of the case falls outside the discretionary range which was available to Trial Chamber It is the Prosecution’s submission that the Respondent’s crimes are among the worst that come before the Tribunal That being the case the Trial Chamber committed a discernible error by not imposing the Tribunal’s highest sentence 35 Although the prosecution did “not challenge any of the Trial Chamber’s factual findings” it submitted that the Trial Chamber “committed a discernible error by not imposing the Tribunal’s highest sentence” 30 In other words accepting the facts as found by the Trial Chamber the prosecution contended that the sentence was not correct It argued that the sentence fell “outside the discretionary range which was available to the Trial Chamber” In paragraph 2 9 of its Appeal Brief it contended that the Trial Chamber’s sentence “clearly does not reflect the extreme gravity of the crimes and the high ranking position of the Respondent” The prosecution’s approach was in keeping with the foregoing description of the functions of an appeals court in the matter of sentencing The facts may themselves suffice to prove that the gravity of the crimes was misapprehended 36 More particularly the prosecution’s approach was consistent with that taken by the Appeals Chamber in Aleksovski31 There in finding that there was “discernible error” the Appeals Chamber said that the “error consisted of giving insufficient weight to the gravity of the conduct of the Appellant and failing to treat his position as commander as an aggravating feature in relation to his responsibility under Article 7 1 of the Statute” 32 The Appeals Chamber examined his actual conduct as found by the Trial Chamber and was “satisfied that the Trial Chamber was in error in 28 R v Waddingham 5 Cr App R S 66 69 Archbold Criminal Pleading Evidence and Practice 2003 London Sweet Maxwell 2003 paras 7-141 30 Footnote omitted 31 Aleksovski Appeal Judgement 29 198 Case No IT-98-29-A 30 November 2006 sentencing the Appellant to two and a half years’ imprisonment” 33 it observed that the “sentence imposed by the Trial Chamber was manifestly inadequate” 34 In its view the question which arose was “whether the Appeals Chamber should review the sentence” 35 It proceeded to increase the sentence to seven years’ imprisonment It did not undertake any exercise other than weighing the conduct of the appellant in order to determine whether the Trial Chamber had committed a “discernible error” in estimating the gravity of the crime The manifest discrepancy between the sentence passed by the Trial Chamber and the sentence merited in the opinion of the Appeals Chamber spoke for itself on the question of gravity – the sentence merited was about thrice the length of the sentence passed A parsing of this or other cases to demonstrate specific error would be useful but would not negate this conclusion as applying generally an admissible test is manifest inadequacy 37 Thus while it is recognised as it has been above that not every leniency betokens error error is present where the court of appeal considers that the leniency calls into question the soundness of the conviction where no reasonable Trial Chamber would have imposed a sentence as lenient as that passed the Appeals Chamber must intervene in keeping with its mission The question is not how the sentence imposed appears in absolute terms thus viewed a sentence of twenty years’ imprisonment may appear to be substantial The question is how the sentence imposed appears in relation to the sentence which is reasonably judged to be merited by the gravity of the appellant’s crimes Looking at the gravity of the appellant’s crimes no reasonable Trial Chamber would have imposed a sentence as low as twenty years’ imprisonment It seems to me that that must be the foundation of a proposal to remand the case to a Trial Chamber for sentencing the gravity of the crimes was misapprehended 38 The foregoing being the reasoning which I adopt it follows that I am not ready to accept that the increase ordered by the Appeals Chamber “disserves the principles of procedural fairness on which our legitimacy rests” or that it is based on “conclusory statements” offered by the majority 36 No more so than in Gacumbitsi 37 in which the ICTR Appeals Chamber – unanimously on this point – ordered that the sentence be increased from imprisonment for thirty years to imprisonment for life 32 Ibid para 187 Ibid para 186 34 Ibid para 187 35 Ibid para 186 36 Separate and Partially Dissenting Opinion of Judge Meron para 14 37 Gacumbitsi Appeal Judgement 33 199 Case No IT-98-29-A 30 November 2006 39 In judging what is the sentence merited by the gravity of the crimes in this case regard has to be had to what the appellant did For 23 months as the senior officer in actual command he directed fire on a daily basis at civilians in Sarajevo They cowered in mortal fear before a constant barrage of artillery and other guns aimed at them from surrounding mountains and hills with the deliberate design of drilling “terror and mental suffering” in them – apart from causing much carnage killing and maiming The entire population of 300 000 persons was terrorised Hundreds were killed thousands were wounded Paragraph 584 of the Trial Judgement stated that the “Majority heard reliable evidence that civilians were targeted during funerals in ambulances in hospitals on trams on buses when driving or cycling at home while tending gardens or fires or clearing rubbish in the city … while using public transport vehicles running during cease-fires … while fetching water … Even children were targeted in schools or while playing outside riding a bicycle … ” 40 The Appeals Chamber is unanimous in upholding the factual findings of the majority of the Trial Chamber One member of the bench of the Appeals Chamber might have had reasonable doubts about one incident if he sat as a trial judge but he “cannot say that all reasonable triers of fact had to reach this conclusion” 38 therefore even in respect of that incident the Appeals Chamber unanimously upholds the factual finding of the majority of the Trial Chamber The convictions upheld were not only for terror but for murder and inhumane acts as crimes against humanity The sentence of 20 years’ imprisonment was a global one that is to say it was a single sentence which applied to all the convictions In my opinion what is called for by the gravity of the crimes is the maximum sentence 41 True the appellant did not personally do all the acts alleged It is therefore apposite to bear in mind the remark of the District Court of Jerusalem in Eichmann that “the degree of responsibility generally increases as we draw further away from the man who uses the fatal instrument with his own hands and reach the higher levels of command” 39 Thus the appellant engaged increased responsibility “War” said a distinguished writer “is not a condition of anarchy or lawlessness” 40 That has to be remembered where chaos at one end is deliberately organized at the other Here that was so the organizer was the appellant 38 Separate and Partially Dissenting Opinion of Judge Meron para 12 Attorney-General of the Government of Israel v Adolph Eichmann District Court of Jerusalem Judgement 36 ILR 1968 p 237 para 197 40 Lauterpacht ed Oppenheim’s International Law 7th Edition Vol 2 London Longmans Green 1952 section 241 cited in ICJ Pleadings Aerial Incident of 27 July 1955 p 215 para 7 of the Memorial of the United States of America 39 200 Case No IT-98-29-A 30 November 2006 42 Mitigating circumstances in this case are meagre the only circumstance noted by the majority in the Trial Chamber was that the appellant showed “exemplary behaviour … throughout the proceedings before the International Tribunal” 41 While that consideration is admissible in the circumstances of this case it is not sufficient to warrant a decrease in sentence the major question concerns his behaviour during the events not his behaviour before the International Tribunal 43 On the question of comparison with sentences imposed in other cases it has been correctly observed that there is no “ICTY case where a defendant has ended up with a life sentence after appeal” 42 I recognise that result as a cautionary matter but it is not dispositive Whether it is satisfactory that a defendant at the ICTY has never until now ended up after appeal with a life sentence will be for others to judge when the historical record of the Tribunal is read in due course 44 In Gacumbitsi 43 as mentioned above the ICTR Appeals Chamber increased the sentence from thirty years to life imprisonment I am not persuaded that the case can be distinguished on the basis of argument that it was “in keeping with a line of life sentences given in ICTR genocide cases in which there were ‘no especially mitigating circumstances’” and that by contrast the “ICTY … lacks a comparable line of genocide cases …” 44 The argument seems to be saying that in such cases life sentences have been handed down by the ICTR but not by the ICTY Like Mr Gacumbitsi Mr Galić was “convicted of extremely serious offences” 45 It cannot be said that there were any “especially mitigating circumstances” in this case In view of the gravity of Mr Galić’s crimes and barring any such “especially mitigating circumstances” I have difficulty in seeing why Gacumbitsi should be inapplicable to this case A jurisprudence with any fair pretension to universality will not accept so marked a discrepancy parochialism has to be avoided 45 As remarked above the prosecution is accepting all the factual findings of the Trial Chamber what it is questioning is the correctness of the sentence passed on those factual findings The prosecution is doing so on the basis that the Trial Chamber committed an error of law by misjudging the gravity of the crimes On that view which I share it seems to me that the concept of appellate deference to the factual findings of a Trial Chamber provides limited assistance if any 41 Trial Judgement para 766 Separate and Partially Dissenting Opinion of Judge Meron para 10 43 Gacumbitsi Appeal Judgement para 206 44 Separate and Partially Dissenting Opinion of Judge Meron para 9 quoting Gacumbitsi Appeal Judgement para 204 45 Gacumbitsi Appeal Judgement para 204 42 201 Case No IT-98-29-A 30 November 2006 46 My learned brother Judge Meron has put forward certain propositions in paragraphs 12 and 14 of his valuable opinion I would rally to the substance of the propositions if the majority of the Appeals Chamber were simply disagreeing with the result of the exercise by the Trial Chamber of its undoubted sentencing discretion But the majority is doing more than that it considers that the facts show that the Trial Chamber has committed an error in the exercise of its discretion in that it has underestimated the gravity of the crimes committed by the appellant In the language of German jurisprudence the Trial Chamber has taken the sentence “from the wrong shelf” 46 47 The facts are stubborn they will not go away To repeat they show that the appellant as the senior officer in actual command terrorised 300 000 civilians he killed hundreds of them he wounded thousands He did that with artillery and other guns safely perched upon mountains and hills surrounding his hapless victims below – men women children and the elderly he did that on a daily basis over a sustained period of 23 months As stated in paragraph 455 of the judgement of the Appeals Chamber his crimes were “characterized by exceptional brutality and cruelty” I do not know of any member of the bench who disagrees with that assessment 48 In my judgement the facts show that the Trial Chamber underestimated the gravity of the appellant’s crimes in imposing a sentence of 20 years’ imprisonment Underestimation of the gravity of a crime is a reversible error All the facts were laid before the Trial Chamber and have already been evaluated by it There are no new matters to be investigated the Appeals Chamber requires no further help It is correct for the Appeals Chamber to allow the appeal by the prosecution against sentence Done in English and in French the English text being authoritative ______________________ Mohamed Shahabuddeen 30 November 2006 The Hague The Netherlands Seal of the International Tribunal 46 Judgement of the Appeal Chamber para 455 202 Case No IT-98-29-A 30 November 2006 XXI SEPARATE AND PARTIALLY DISSENTING OPINION OF JUDGE MERON 1 I agree with the reasoning of the Appeals Chamber with regard to Galić’s Appeal I write separately for two reasons first to add a brief thought on why acts or threats of violence the primary purpose of which is to spread terror among the civilian population are criminal violations of customary international law and second to dissent from the decision to grant the Prosecution’s Appeal as to the sentence I 2 The Appeals Chamber explains why criminal responsibility attaches to acts or threats of violence the primary purpose of which is to spread terror among the civilian population I believe this conclusion also follows logically from the ban present at least since the Fourth Hague Convention on the Laws and Customs of War on “declar ing that no quarter will be given ”1 It is a crime to violate principles of customary international law identified in the Fourth Hague Convention 2 And if threats that no quarter will be given are crimes then surely threats that a party will not respect other foundational principles of international law – such as the prohibition against targeting civilians – are also crimes The terrorization at issue here is exactly such a threat II 3 I respectfully dissent from the Appeals Chamber’s decision to increase Galić’s sentence from 20 years to life imprisonment In my view this increase is incompatible with the standard of review that we have applied in the past 4 “Sentencing is essentially a discretionary process on the part of a Trial Chamber ”3 Our jurisprudence makes this very clear We have recognized in numerous cases that “Trial Chambers are vested with broad discretion in determining an appropriate sentence” 4 We have similarly emphasized that “ a ppeals against sentence as appeals from a trial judgement are appeals stricto 1 Regulations Respecting the Laws and Customs of War on Land annexed to Hague Convention IV art 23 See e g 1 Trial of the Major War Criminals Before the International Military Tribunal 220 1947 Nuremberg Judgement “The Hague Convention of 1907 prohibited resort to certain methods of waging war … S ince 1907 these prohibitions have certainly been crimes punishable as offenses against the laws of war ” 3 Kvo ka et al Appeal Judgement para 669 4 Babi Judgement on Sentencing Appeal para 7 see also e g Naletili and Martinovi Appeal Judgement para 593 Deronji Sentencing Appeal Judgement para 8 Momir Nikoli Judgement on Sentencing Appeal para 8 Krstić Appeal Judgement para 242 2 203 Case No IT-98-29-A 30 November 2006 sensu they are of a corrective nature and are not trials de novo ”5 Our obligation to give broad deference to the Trial Chamber stems from the standard set forth in Article 25 of the Statute 6 As the court most familiar with the particulars related to the defendant and his crime the Trial Chamber is best positioned to identify the proper sentence 7 Accordingly our precedents make clear that we can reverse a sentence imposed by the Trial Chamber only where we identify a “discernible error” 8 5 As the Prosecution concedes there is no discernible error in the Trial Chamber’s factual findings 9 The Trial Chamber fully acknowledged the gravity of Galić’s crimes in its discussion of the sentence 10 It also noted his “very senior position” in aggravation 11 and his “exemplary behaviour … throughout the proceedings before the International Tribunal” in mitigation 12 Taking into account all these factors the Trial Chamber imposed a single sentence of 20 years imprisonment 13 The Appeals Chamber now overturns this sentence and imposes a life sentence on the grounds that a “sentence of only 20 years was so unreasonable and plainly unjust in that it underestimated the gravity of Galić’s criminal conduct ”14 6 I must dissent from the Appeals Chamber’s decision to treat the Trial Chamber’s chosen sentence as outside its broad discretion For where a Trial Chamber properly identifies the relevant factors that should govern its decision and where no new convictions are entered on appeal I would increase its chosen sentence only if one of two conditions is met either the sentence is clearly out of proportion with sentences we have given in similar situations or the sentence is otherwise so low 5 Momir Nikoli Judgement on Sentencing Appeal para 7 footnotes and accompanying citations omitted see also e g Babi Judgement on Sentencing Appeal para 6 6 Momir Nikoli Judgement on Sentencing Appeal para 7 7 Cf Attorney-General’s Reference No 4 of 1989 11 Cr App R S 517 521 Lane C J “ I t must always be remembered that sentencing is an art rather than a science that the trial judge is particularly well placed to assess the weight to be given to various competing considerations and that leniency is not in itself a vice” 8 Krstić Appeal Judgement para 242 see also Naletili and Martinovi Appeal Judgement para 593 Momir Nikoli Judgement on Sentencing Appeal para 8 Prosecutor v Miodrag Joki Case No IT-01-42 1-A Judgement on Sentencing Appeal 30 August 2005 para 8 Deronji Sentencing Appeal Judgement para 8 Babi Judgement on Sentencing Appeal para 7 Kvo ka et al Appeal Judgement para 669 Kordi and erkez Appeal Judgement para 1047 Blaškić Appeal Judgement para 680 Vasiljevi Appeal Judgement para 9 Dragan Nikoli Appeal Judgement para 9 Krnojelac Appeal Judgement para 253 Kunarac et al Appeal Judgement para 33 Kupre ki et al Appeal Judgement para 408 Jelisić Appeal Judgement para 99 Čelebići Appeal Judgement para 725 Furund ija Appeal Judgement para 239 Aleksovski Appeal Judgement para 187 Tadi Sentencing Appeal Judgement para 22 9 See Prosecution Appeal Brief para 2 3 10 Trial Judgement para 764 recognizing the “scale pattern and virtually continuous repetition almost daily over many months” of Galić’s offenses and stating that “ i nhabitants of Sarajevo – men women children and elderly persons – were terrorized and hundreds of civilians were killed and thousands wounded during daily activities such as attending funerals tending vegetable plots fetching water shopping going to the hospital commuting within the city or while at home” see also ibid para 584 11 Trial Judgement para 765 12 Trial Judgement para 766 13 Trial Judgement para 769 14 See Appeal Judgment supra para 455 204 Case No IT-98-29-A 30 November 2006 that it demonstrably shocks the conscience Any more stringent review denies the Trial Chamber the broad discretion vested in it 7 Neither of these two conditions is satisfied here As to the first condition our case law indicates that “in principle a sentence may be thought to be capricious or excessive if it is out of reasonable proportion with a line of sentences passed in similar circumstances for the same offences ”15 This principle is of limited use given the “multitude of variables ranging from the number and type of crimes committed to the personal circumstances of the individual ” and “ o ften too many variables exist to be able to transpose the sentence in one case mutatis mutandis to another ”16 Nonetheless an “overview of the International Tribunal’s cases” can be helpful in assessing whether the sentence was disproportionate 17 8 The ICTR Appeals Chamber has applied a comparative analysis in one case in Gacumbitsi it increased a sentence from thirty years to life in keeping with a line of life sentences given in ICTR genocide cases in which there were “no especially mitigating circumstances ”18 The ICTY however lacks a comparable line of genocide cases and so Gacumbitsi is not applicable here 19 Indeed the ICTY Appeals Chamber has been reluctant to apply a comparative analysis 20 9 Perhaps partly in consequence of the ICTY’s emphasis on individualized sentencing the final sentences imposed upon convicted individuals have ranged widely Of the convictions which have become final 21 15 individuals have received sentences of less than 10 years 22 19 have 15 Jelisić Appeal Judgement para 96 Kvo ka et al Appeal Judgement para 227 17 Kordi and Čerkez Appeal Judgement para 1064 18 See Gacumbitsi Appeal Judgement para 204 The ICTR Trial Chambers had previously issued life sentences affirmed on appeal in genocide cases to Jean-Paul Akayesu Akeyesu Appeal Judgement para 421 Jean Kambanda Kambanda Appeal Judgement para 126 Jean De Dieu Kamuhanda Prosecutor v Kamuhanda Case No ICTR-9954A-A Judgement 19 September 2005 para 364 Clément Kayishema Kayishema and Ruzindana Appeal Judgement para 371 Alfred Musema Musema Appeal Judgement para 399 and Eliézer Niyitegeka Niyitegeka Appeal Judgement paras 266-269 Georges Anderson Nderubumwe Rutaganda also received a life sentence which the Appeals Chamber did not reconsider See Rutaganda Appeal Judgement para 592 The Appeals Chamber in Gacumbitsi distinguished those ICTR genocide convictions in which a life sentence was not given Gacumbitsi Appeal Judgement fn 446 19 Contrary to the suggestion of my learned colleague see Separate Opinion of Judge Shahabuddeen para 44 I do not distinguish Gacumbitsi on the ground that “life sentences have been handed down by the ICTR but not by the ICTY ” Instead I show that Gacumbitsi rests on a comparative analysis of genocide sentences that is entirely inapplicable here – as demonstrated by the majority’s opinion’s failure to provide any discussion of any prior cases in its analysis see supra paras 454-455 20 See e g Kvo ka et al Appeal Judgement paras 682 690 Naletili and Martinovi Appeal Judgement para 616 While the Prosecution urges that convictions for crimes involving murder should generally lead to “sentences at the high end of the sentencing spectrum” see Prosecution Appeal Brief para 2 19 1 this principle cannot be deduced from our case law To the contrary we have found “the view that crimes resulting in loss of life are to be punished more severely than those not leading to loss of life” to be “too rigid and mechanistic ” Furundžija Appeal Judgement para 246 See also infra fns 22-24 demonstrating that murder-related convictions are not strongly correlated with high-end sentences in ICTY jurisprudence 21 In identifying the length of sentences given I mention only the longest single sentence where concurrent sentences are given 16 205 Case No IT-98-29-A 30 November 2006 received sentences of 10-19 years 23 and only 12 have received sentences of 20 years or more 24 In 22 Dragan Kolundžija received 3 years for persecution of detainees at the Keraterm camp Prosecutor v Sikirica et al Case No IT-95-8-S Sentencing Judgement 13 November 2001 paras 1 241-243 Damir Došen received 5 years for persecution of detainees at the Keraterm camp Prosecutor v Sikirica et al Case No IT-95-8-S Sentencing Judgement 13 November 2001 paras 1 237-239 Dražen Erdemovi received 5 years for murdering Bosnian Muslim civilian men from Srebrenica Prosecutor v Erdemovi Case No IT-96-22-Tbis Sentencing Judgement 5 March 1998 paras 13 23 Dragoljub Prca received 5 years as a co-perpetrator of murder persecution and torture at the Omarska camp Kvočka et al Appeal Judgement para 5 p 243 Milan Simi received 5 years for two counts of torture which he personally participated in while holding a high-ranking civilian position Prosecutor v Simi Case No IT-95-9 2-S Sentencing Judgement 17 November 2002 paras 10 11 64 122 Milojica Kos received 6 years for his role as a co-perpetrator of murder torture and persecution all encompassing large numbers of victims at the Omarska camp Prosecutor v Kvočka et al Case No IT-98-30 1-T Judgement 2 November 2001 paras 504 729 735 Mario Čerkez received 6 years for persecution imprisonment and unlawful confinement of civilians Kordi and erkez Appeal Judgement para 1070 p 302 Simo Zari received 6 years for persecution of non-Serb civilians Prosecutor v Simi et al Case No IT-96-9-T Judgement 17 October 2003 paras 1123-1126 Miroslav Kvo ka received 7 years as a co-perpetrator of persecution murder and torture at the Omarska camp Kvo ka et al Appeal Judgement para 3 p 242 Miodrag Joki received 7 years as a co-perpetrator for unlawful shelling murder of civilians and destruction of buildings of significance Prosecutor v Joki Case No IT-01-42 1-A Judgement on Sentencing Appeal 30 August 2005 paras 2 31 Zlatko Aleksovski received 7 years for among other things violent mistreatment of detainees Aleksovski Appeal Judgement paras 36 37 191 Miroslav Tadi received 8 years for aiding and abetting persecution based on his direct participation in preparation for the deportation and forcible transfers of civilians Prosecutor v Simi et al Case No IT-95-9-T Judgement 17 October 2003 paras 1119-1122 Pavle Strugar received a sentence of 8 years for attacks on civilians and the destruction of buildings of significance Prosecutor v Strugar Case No IT-01-42-T Judgement 31 January 2005 paras 481 478 Pedrag Banovi received 8 years for persecution based on excessive violence to detainees at the Keraterm camp such as the beating to death of 5 detainees Prosecutor v Banovi Case No IT-02-65 1-S Sentencing Judgement 28 October 2003 paras 90 91 93 95 Zdravko Muci received 9 years for among other things superior responsibility for murder torture and sexual assault Prosecutor v Muci et al “Čelebi i” Case No IT-96-21-Abis Judgement on Sentence Appeal 8 April 2003 paras 1 5 A sixteenth individual Timohir Blaški received 9 years for various crimes Blaški Appeal Judgement p 258 but a motion for reconsideration in his case is pending 23 Miroslav Deronji received 10 years for persecutions based on his ordering an attack on a Bosnian Muslim village that led to the deaths of 64 civilians destroyed much of the town and caused the forcible displacement of residents Deronji Sentencing Appeal Judgement paras 2 4 p 56 Anto Furundžija received 10 years for torture Furundžija Appeal Judgement para 216 p 79 Stevan Todorovi received 10 years for persecution involving murder beatings and sexual coercion of various non-Serbs Prosecutor v Todorovi Case No IT-95-9 1-S Sentencing Judgement 31 July 2001 paras 5 9 117 Biljana Plavši received 11 years for persecution of non-Serbs in 37 municipalities including killings forced deportations and plunder Prosecutor v Plavši Case No IT-00-39 40 1-S Sentencing Judgement 27 February 2003 paras 8 15 132 Drago Josipovi received 12 years for persecution murder and inhumane acts related to attacks on certain Bosnian Muslim homes and the murder of their inhabitants Kupreški et al Appeal Judgement paras 15-17 p 170 Zoran Vukovi received 12 years for the torture and rape of a fifteen-yearold Kunarac et al Appeal Judgement paras 21 395 414 Ivica Raji received 12 years for among other things wilful killing Prosecutor v Raji Case No IT-95-12-S Sentencing Judgement 8 May 2006 paras 5 9 184 Milan Babi received 13 years as a co-perpetrator of persecutions that included the extermination or murder of hundreds of non-Serb civilians deportation of thousands of non-Serb civilians and deliberate destruction of non-Serb homes and other establishments Babi Judgement on Sentencing Appeal para 3 p 47 Esad Landžo received 15 years for various crimes related to killing torture sexual assault and beating of detainees in the Čelebi i camp Prosecutor v Muci et al “Čelebi i” Case No IT-96-21-Abis Judgement on Sentence Appeal 8 April 2003 paras 1 61 Blagoje Simić received 15 years for aiding and abetting persecutions of non-Serb civilians through among other things confinement under inhumane conditions and forcible displacements Prosecutor v Blagoje Simić Case No IT-95-9-A Judgement 28 November 2006 para 301 Mitar Vasiljevi received 15 years as an aider and abettor to persecution and murder related to the shooting of seven Muslim men Vasiljevi Appeal Judgement paras 148 182 Duško Sikirica received 15 years for persecution of detainees at the Keraterm camp at which he had a position of responsibility and for personally murdering one detainee Prosecutor v Sikirica et al Case No IT-95-8-S Sentencing Judgement 13 November 2001 paras 1 233-235 Milorad Krnojelac received 15 years for multiple counts of murder torture persecution and cruel treatment committed over an extended stint as a camp warden Krnojelac Appeal Judgement para 255 pp 113-114 Darko Mrđa received 17 years for crimes related to the massacre of two busloads of non-Serb civilians Prosecutor v Mrđa Case No IT-02-59-S Sentencing Judgement 31 March 2004 paras 1 5 10 129 Dragan Obrenovi received 17 years for persecutions related to the murder of thousands of Bosnian Muslims at Srebrenica Prosecutor v Obrenovi Case No IT-02-60 2-S Sentencing Judgement 10 December 2003 paras 11 29 156 Ranko Češi received 18 years for ten murders and for forcing two brothers to commit a sex act upon each other Prosecutor v Ceši Case No IT-95-10 1-S Sentencing Judgement 11 March 2004 paras 3-4 17 111 Hazim Deli 206 Case No IT-98-29-A 30 November 2006 no case has an ICTY defendant ended up with a life sentence This is not to say such a sentence cannot be given To the contrary the Appeals Chamber in Stakić acknowledged that a life sentence for a “co-perpetrator of extremely serious crimes including an extermination campaign that the Trial Chamber estimated killed approximately 1 500 people in the Prijedor municipality” fell “within the Trial Chamber’s discretion ” though the Appeals Chamber did not suggest that such a life sentence was compelled 25 But in the absence of any ICTY case where a defendant has ended up with a life sentence after appeal a comparative analysis gives us no basis for finding that the Trial Chamber was obligated to impose a life sentence on Galić This is true even if as the Prosecution claims Galić’s “crimes are among the worst that come before the Tribunal ”26 received 18 years for wilfully killing one detainee wilfully causing great suffering to another raping two victims and committing several other crimes Prosecutor v Muci et al “Čelebi i” Case No IT-96-21-Abis Judgement on Sentence Appeal 8 April 2003 paras 40-47 Vladimir Šanti received 18 years for persecution murder and inhumane acts related to attacks on certain Bosnian Muslim homes and the murder of their inhabitants Kupreški et al Appeal Judgement paras 19-20 p 171 Vinko Martinovi received 18 years for various crimes related to events at Mostar including persecution murder wilful killing and plunder Naletili and Martinovi Appeal Judgement para 6 p 280 24 Momir Nikoli received 20 years for persecution related to his role in Srebrenica including the murder of thousands of Bosnian Muslim civilians and the cruel treatment of many others Momir Nikoli Judgement on Sentencing Appeal paras 2-3 p 48 Dragan Nikoli received 20 years for persecutions including murder rape and torture from which he derived enjoyment Dragan Nikoli Appeal Judgement paras 4 30 p 44 Radomir Kovač received 20 years for outrages on personal dignity rape and enslavement Kunarac et al Appeal Judgement paras 11 367 394 Duško Tadi received 20 years for nine counts Tadi Sentencing Appeal Judgement para 76 Mladen Naletili received 20 years for persecution torture and multiple other offenses based upon his role as a Croat commander at Mostar Naletili and Martinovi Appeal Judgement paras 3-4 p 207 Mlađo Radi received 20 years for persecution murder and torture at the Omarska camp where he personally raped or committed sexual violence on 4 victims Kvo ka et al Appeal Judgement paras 6 393 p 243 Dario Kordi received 25 years for a multitude of horrific crimes committed in many locales over many months Kordi and erkez Appeal Judgement para 1070 p 302 Zoran Žigi received 25 years for persecution murder and torture at three camps one of which he entered for the sole purpose of abusing detainees Kvo ka et al Appeal Judgement paras 7 716 p 243 Dragoljub Kunarac received 28 years for various counts of torture rape and enslavement Kunarac et al Appeal Judgement paras 5 336 366 Radislav Krsti received 35 years for his role in aiding and abetting genocide extermination and persecution with regard to the massacres of Bosnian Muslims at Srebrenica Krsti Appeal Judgement paras 237 275 Goran Jelisi received 40 years for 31 counts among them murder which he had undertaken enthusiastically Jelesi Appeal Judgement paras 86 93 p 41 Milomir Staki received 40 years for extermination murder and persecution committed in the Prijedor Municipality where he was a Serbian leader Staki Appeal Judgement para 3 p 141142 25 Stakić Appeal Judgement para 375 The Appeals Chamber reduced this life sentence to 40 years for other reasons See ibid paras 393 428 26 Prosecution Appeal Brief para 2 3 The Prosecution does not suggest that this is the worst case to come before the Tribunal Nor does the Prosecution explain why a life sentence is warranted here when it has not been given in other cases Even in the case involving an authority figure in arguably the most horrific incident in the entire conflict – the massacre of 7000-8000 Bosnian Muslim civilians at Srebrenica – the Trial Chamber did not impose a life sentence on Radislav Krsti Like the Prosecution the Appeals Chamber does not even attempt to show that Gali ’s crimes can be considered graver than Krsti ’s I also note another illogical aspect of the Prosecution’s submission The Prosecution both suggests that there was “a discretionary range which was available to the Trial Chamber” and that the only sentence the Trial Chamber could have imposed was a life sentence Prosecution Appeal para 2 3 see also Separate Opinion of Judge Shahabuddeen supra para 35 apparently endorsing this reasoning This cannot be If the Trial Chamber was indeed compelled to impose a life sentence then it had no discretion at all 207 Case No IT-98-29-A 30 November 2006 10 Turning to the second condition I identified I cannot conclude that a 20-year sentence is so low that it demonstrably shocks the conscience 27 The war crimes and crimes against humanity committed by Galić are grave indeed He commanded a lengthy campaign that led to deaths and serious injuries of civilians of all ages and that sought to terrorize countless more Yet his sentence is hardly insubstantial It is not a two-and-a-half-year slap-on-the-wrist 28 but rather a term of 20 years – a sentence that is as long as or longer than the vast majority of sentences imposed by the ICTY to date 29 And as noted by the Trial Chamber this sentence is as long as was the longest prison sentence that could be imposed in the former Yugoslavia 30 The Trial Chamber fully considered the awful nature of Galić’s crimes and the individual considerations pertinent to him in meting it out 11 Reasonable minds can disagree about this sentence just as they can disagree about whether there was enough evidence to support all the convictions in the first place Just as we review the convictions on the merits to see whether any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt rather than considering whether we ourselves would have entered such a conviction so we review the sentence to see whether a Trial Chamber could reasonably impose it – rather than whether we ourselves would have done so Had I sat as a Trial Judge I might not have found Gali guilty beyond a reasonable doubt of the shelling of Markale market but I cannot say that all reasonable triers of fact had to reach this conclusion Similarly had I sat as a Trial Judge I might have called for a sentence of a longer term than 20 years but I cannot say that all reasonable triers of fact were obligated to do the same The need for a consistent standard of review is particularly high in cases like this one where the scope of the defendant’s guilt presents a close question Judge Nieto-Navia for example would have found Galić responsible for fewer incidents than did the majority of the Trial Chamber would have found him guilty only of failing to restrain his subordinates from unlawful conduct that he had reason to know was occurring and 27 Only once has the ICTY Appeals Chamber arguably revised a sentence upward for such reasons In Aleksovski the Appeals Chamber concluded that the sentence of two-and-a-half years was too low and raised it to 7 years instead Aleksovski had been the commander of the Kaonik prison and in that capacity he had among other crimes “aid ed and abett ed the mistreatment of detainees during body searches” “order ed instigat ed and aid ed and abett ed violence on Witnesses L and M who were beaten regularly during their detention sometimes four to six times a day … and order ed the guards to continue beating them when they stopped” and “aid ed and abett ed the use of detainees as human shields” Aleksovski Appeal Judgement para 175 In rejecting the two-and-a-half year sentence as unduly low the Appeals Chamber provided extensive reasoning See ibid paras 183-188 Although the Appeals Chamber’s decision emphasized the disparity between the crimes and the sentence it also identified at least one discernible error made by the Trial Chamber Specifically the Trial Chamber erred in failing to treat Aleksovski’s superior role as an aggravating factor See ibid para 183 The Appeals Chamber also noted that under the law of the former Yugoslavia Aleksovski could not have received a sentence of less than five years See ibid 28 Compare Aleksovksi discussed in the preceding footnote 29 See supra fns 22-24 Of the 46 sentences that have become final 40 have been for 20 years or less 30 Trial Judgement para 761 The law of the former Yugoslavia permitted a death sentence but did not permit a prison term of more than 20 years 208 Case No IT-98-29-A 30 November 2006 would have sentenced him to ten years 31 It is most unfair to affirm Galić’s convictions by genuinely deferring to the findings of the Trial Chamber majority and yet to increase Galić’s sentence by not deferring or only nominally deferring to the Trial Chamber’s choice of sentence 12 Finally I see no meaningful difference between the Prosecution’s appeal in this case and its appeal in Kordi and Čerkez 32 There the Prosecution called for us to increase the 25-year sentence imposed by the Trial Chamber on Dario Kordi who was held responsible for among other crimes the persecution of Bosnian Muslims the murder or wilful killing of hundreds of civilians inhumane acts wanton destruction and plunder committed in and around at least 17 towns and villages in three municipalities of Bosnia-Herzegovina 33 As in this case the Prosecutor did “not argue that the Trial Chamber erred in failing to take into account factors that would have called for a longer sentence ”34 Rather and again parallel to this case the Prosecution claimed that “the sentence of 25 years’ imprisonment is manifestly inadequate in relation to i the magnitude scope – geographic and temporal – and extremely grave nature of the offences the attacks being committed against defenceless civilians and ii Kordi ’s position powers responsibilities as the highest Bosnian Croat political leader in Central Bosnia at the time ”35 We readily held that “The Prosecution has not shown that the Trial Chamber handed down a sentence which did not reflect the gravity of Kordi ’s conduct ”36 For the same reasons we should reach the same conclusion in this case 13 The majority’s decision to increase Galić’s sentence to life imprisonment may satisfy our sense of condemnation But this increase disserves the principles of procedural fairness on which our legitimacy rests As the highest body in our court system we are not readily accountable to any other authority and thus have a particular obligation to use our power sparingly We should not substitute our own preferences for the reasoned judgement of a Trial Chamber A sound method for assuring that we have not fallen prey to such preferences is to measure our choices fully and comprehensively against those made in prior cases Although precise comparisons may be of limited value the radically different approach adopted by the majority in this case requires at least some explanation Rather than undertaking such an analysis however the majority simply offers conclusory statements I cannot accept the majority’s approach No matter what he has done Galić 31 Separate and Partially Dissenting Opinion paras 17-102 120 123 Judge Nieto-Navia was influenced in part by the fact that Galić “personally instructed his troops in writing to respect the Geneva Convention and other instruments of international humanitarian law ” Ibid para 116 see also Trial Judgement para 708 32 Regrettably I have no guidance on this matter from the majority opinion or the separate opinions of my distinguished colleagues None of these opinions even acknowledges the Appeals Chamber’s decision in Kordi and Čerkez let alone attempts to show that Gali ’s crimes are graver than Kordi ’s 33 See generally Kordi and Čerkez Appeal Judgement see also ibid paras 1057-1065 34 Kordi and Čerkez Appeal Judgement para 1063 35 Kordi and Čerkez Appeal Judgement para 1058 36 Kordi and Čerkez Appeal Judgement para 1065 209 Case No IT-98-29-A 30 November 2006 is entitled to due process of law – including a fair application of our standard of review I respectfully dissent Done in English and French the English text being authoritative Done this 30th day of November 2006 _________________ At The Hague Theodor Meron The Netherlands Judge Seal of the International Tribunal 210 Case No IT-98-29-A 30 November 2006 XXII SEPARATE AND PARTIALLY DISSENTING OPINION OF JUDGE SCHOMBURG A Introduction 1 I am in full agreement with the verdict and the sentence as adjusted by majority reflecting the extraordinarily serious individual criminal responsibility of Galić for his heinous crimes that spanned a time period of twenty-three months 2 However I cannot agree with the majority of the bench which affirmed Galić’s conviction under Count 1 for the crime of “acts and threats of violence the primary purpose of which is to spread terror among the civilian population” “terrorization against a civilian population” In my view there is no basis to find that this prohibited conduct as such was penalized beyond any doubt under customary international criminal law at the time relevant to the Indictment 1 Rather I would have overturned Galić’s conviction under Count 1 and convicted him under Counts 4 and 7 for the same underlying criminal conduct taking into account the acts of terrorization against a civilian population as an aggravating factor in sentencing thus arriving at the same adjusted sentence B The Increase of Galić’s Sentence 3 I respectfully disagree with the minority’s view that the Appeals Chamber was not in a position to increase the sentence of Galić to life imprisonment 2 There is no provision in the Statute or in the Rules of Procedure and Evidence that would bar the Appeals Chamber from augmenting a sentence handed down by a Trial Chamber On the contrary both Statute and Rules allow for an appeal of the sentence brought by the Prosecution As already explained in the Judgement the Appeals Chamber will whenever possible defer to the discretion vested in the Trial Chamber However in a case like this 3 where the sentence is in gross disproportion to the crimes committed by Galić the Appeals Chamber must infer that the Trial Chamber’s decision exceeded the limits of its discretion because the decision was not reasonable and was plainly unjust 4 Deliberately I refrain from any comments on paragraph 14 of Judge Meron’s Dissenting Opinion having had the benefit of reading paragraph 38 of Judge Shahabuddeen’s Separate Opinion I am in full agreement with 1 Report of the Secretary-General U N Doc S 25704 3 May 1993 para 34 See Partially Dissenting Opinion of Judge Pocar Separate and Partially Dissenting Opinion of Judge Meron 3 I fully subscribe to the reasoning in paras 391-456 of the Judgement Additionally the aspect of general deterrence often referred to as “deterrence for peace” should not be forgotten as one of the main sentencing purposes if only the individual guilt limits the range of the sentence see Stakić Trial Judgement paras 899 901 4 See Judgement para 444 2 211 Case No IT-98-29-A 30 November 2006 the latter 5 Moreover as the majority holds that there is only one adequate sentence there is no reason to remand this case to the Trial Chamber for sentencing thus allowing for an appeal that could not be successful C The Applicability of the “Crime of Acts and Threats of Violence the Primary Purpose of Which is to Spread Terror Among the Civilian Population” to the Present Case 4 The Indictment in this case charged the Appellant under Count 1 violations of the laws or customs of war unlawfully inflicting terror upon civilians with having “conducted a protracted campaign of sniping and shelling upon the civilian population ”6 This same criminal conduct also served as a basis for Counts 4 and 7 of the Indictment violations of the laws or customs of war attack on civilians The Trial Chamber found that the “series of military attacks on civilians in ABiH-held areas of Sarajevo and during the Indictment period were carried out from SRKcontrolled territories with the aim to spread terror among the civilian population”7 and “constituted a campaign of sniping and shelling against civilians ”8 It established Galić’s individual criminal responsibility for these acts and convicted him under Count 1 for what it called “the crime of terror” 9 The majority of the Appeals Chamber affirms this conviction subject to two changes first it renames the crime second it holds without sufficient reasoning that the crime was founded in customary international law during the Indictment period While I agree to correct the name of the crime I respectfully submit that it is not possible to assert beyond any doubt that the crime was indeed part of customary international law at the time of Galić’s criminal conduct 5 Respectfully however I disagree with the conclusion drawn by Judge Meron in para 11 of his Separate Opinion from the fact that the law of the former Yugoslavia only permitted prison sentences of not more than twenty years First this Tribunal – although mandated by Article 24 of the Statute to “have recourse to the general practice regarding prison sentences in the courts of the former Yugoslavia” – is not obliged to unconditionally adhere to this practice which in any case can be considered only as one ingredient in the determination of the sentence The cases before this Tribunal differ in their magnitude and gravity from those ordinarily prosecuted under domestic criminal law in peacetime Second as Judge Meron mentions in footnote 30 of his Separate Opinion the law of the former Yugoslavia did in fact allow even imposition of the death penalty i e a much harsher sentence Considering that this Tribunal is rightfully barred from imposing capital punishment it is thus possible to hand out a more lenient sentence in a range of longer than twenty years imprisonment Third as correctly pointed out by Judge Meron in giving several examples this is exactly what the Tribunal has done in the past in particular in the settled sentencing practice of the Appeals Chamber This happened most recently as regards the ICTY in the Stakić case where the Appeals Chamber de facto increased the sentence from life imprisonment with mandatory review after twenty years where early release can be granted to forty years of imprisonment taking into account the Tribunal’s practice to grant early release – if at all – not prior to date when two thirds of the sentence have been served 6 Indictment of 26 March 1999 7 Trial Judgement para 594 8 Ibid 9 It then correctly concluded that a conviction under Counts 4 and 7 for the same conduct would be impermissible Trial Judgement para 162 212 Case No IT-98-29-A 30 November 2006 1 The Prerequisites for Jurisdiction under Article 3 of the Statute 5 It is the settled jurisprudence of the Appeals Chamber since Tadić that the International Tribunal has jurisdiction for a violation of international humanitarian law under Article 3 of the Statute only when four conditions are met i the violation must constitute an infringement of a rule of international humanitarian law ii the rule must be customary in nature or if it belongs to treaty law the required conditions must be met ₣ ğ iii the violation must be serious that is to say it must constitute a breach of a rule protecting important values and the breach must involve grave consequences for the victim ₣ ğ iv the violation of the rule must entail under customary or conventional law the individual criminal responsibility of the person breaching the rule 10 6 Furthermore when taking recourse to customary international law the International Tribunal must be very careful in assessing what undeniably belongs to this body of law Indeed it was the Secretary-General’s view that “the application of the principle nullum crimen sine lege requires that the international tribunal should apply rules of international humanitarian law which are beyond any doubt part of customary law ₣ ğ ”11 2 Article 3 of the Statute and “Acts and Threats of Violence the Primary Purpose of Which is to Spread Terror Among the Civilian Population” 7 It is generally accepted that the existence of customary law has primarily to be deducted from the practice and opinio juris of states 12 There can be no doubt – as explained in the Judgement13– that the prohibition14 of acts and threats of violence the primary purpose of which is to spread terror among the civilian population as set out in Article 51 2 2nd Sentence of Additional Protocol I and Article 13 2 2nd Sentence of Additional Protocol II was part of customary international law The violation of this prohibition by Galić clearly fulfilled the first three Tadić conditions However the core question of this case is whether the fourth Tadić 10 Tadić Jurisdiction Decision para 94 Report of the Secretary-General supra note 1 para 34 The Report continues “This would appear to be particularly important in the context of an international tribunal prosecuting persons responsible for serious violations of international humanitarian law ” 12 International Court of Justice Case Concerning the Continental Shelf Libya Malta Judgement of 3 June 1985 para 27 “It is of course axiomatic that the material of customary international law is to be looked for primarily in the actual practice and opinio juris of States ₣…ğ ” see also M N Shaw International Law 5th edition 2003 p 68 et seq 13 Judgement paras 91-98 14 Emphasis added 11 213 Case No IT-98-29-A 30 November 2006 condition was met as well that is whether the aforementioned prohibition was penalized 15 thus attaching individual criminal responsibility to Galić The Judgement comes to the conclusion that the fourth Tadić condition was satisfied stating 8 “that numerous states criminalise violations of international humanitarian law – encompassing the crime of acts or threats of violence the primary purpose of which is to spread terror among the civilian population – within their jurisdiction”16 and “that numerous States have incorporated provisions as to the criminalisation of terror against the civilian population as a method of warfare in a language similar to the prohibition set out in the Additional Protocols ”17 Upon further analysis it is questionable whether these claims are accurate Indeed the temporal point of departure when determining whether there was state practice must be the time period relevant to the Indictment which charged Galić for acts committed between 1992 and 1994 18 Ireland mentioned in paragraph 94 of the Judgement only penalized violations of the 9 Additional Protocols in 1998 The reference to Ireland’s Geneva Convention Act of 1962 is thus misguided Equally Bangladesh’s International Crimes Tribunal Act of 1973 as cited in footnote 296 does not mention the Additional Protocols 19 10 The Appeals Chamber was thus only able to establish with certainty that just an extraordinarily limited number of states at the time relevant to the Indictment had penalized terrorization against a civilian population in a manner corresponding to the prohibition of the Additional Protocols these being Côte D’Ivoire 20 the then Czechoslovakia 21 Ethiopia 22 the Netherlands 23 Norway and Switzerland It is doubtful whether this can be viewed as evidence of 15 As opposed to imposing mere disciplinary measures Judgement para 94 emphasis added 17 ibid para 95 emphasis added 18 Ojdanić Appeal Decision on Joint Criminal Enterprise para 9 “The fact that an offense is listed in the Statute does not therefore create new law and the Tribunal has jurisdiction over a listed crime if that crime was recognized as such under customary international law at the time it was allegedly committed ” See also Kordić and Čerkez Appeal Judgement para 66 Report of the Secretary-General supra note 1 para 34 19 Article 33 of Geneva Convention IV is clearly different in scope from the relevant prohibition as set out in Article 51 2 2nd Sentence of Additional Protocol I and Article 13 2 2nd Sentence of Additional Protocol II 20 Note that Art 138 5 of Côte D’Ivoire’s Penal Code refers only to “mesures de terreur ” 21 The Czech and Slovak Criminal Codes did not differ from the old Czechoslovak Criminal Code of 1961 the relevant provision of which was amended in 1990 Art 263a 1 Czechoslovakia ceased to exist on 31 December 1992 and was succeeded by the Czech Republic and the Slovak Republic Note that the Criminal Code speaks of “terroriz ing defenceless civilians with violence or the threat of violence ” 22 Note that Art 282 g of Ethiopia’s Penal Code only speaks of “measures of intimidation and terror ” 23 Note that the Art 8 1 and 3 5 of the Wartime Offences Act of the Netherlands of 1952 as amended 1990 only spoke of imposing an aggravating sentence if “the act constituting a violation of the laws and customs of war is the expression of a policy of systematic terror ” Note furthermore that the relevant provision was repealed in 2003 when the Netherlands implemented the Statute of the International Criminal Court which penalizes grave breaches of the Geneva Conventions and the Additional Protocols only 16 214 Case No IT-98-29-A 30 November 2006 “extensive and virtually uniform”24 state practice on this matter Moreover one must consider that Norway’s Penal Code25 only generally refers to breaches of the Additional Protocols thus raising the question of nullum crimen sine lege certa The same concern applies to Switzerland’s Military Penal Code 26 The Netherlands later even repealed the relevant provision when implementing the ICC Statute in national law i e after the relevant time period lex mitior 11 Furthermore it must be considered that many states did not choose to pass legislation in this respect even though they had legislation penalizing attacks on civilians Examples are the United States 27 the United Kingdom 28 Australia 29 Germany 30 Italy31 and Belgium 32 12 In any event it is not sufficient to simply refer to a “continuing trend of nations criminalising terror as a method of warfare”33 when this trend if it can be identified as such is of no relevance to the time period in which Galić’s criminal conduct falls 13 The Judgement’s references to the Yugoslav laws before 1992 must also be viewed in context Significantly it must be kept in mind that the Criminal Codes of 1960 1964 and 1976 penalized the “application of intimidating measures and terror” with no change in the 1990 Code and that there was no change specifically addressing Yugoslavia’s ratification of Additional 24 International Court of Justice North Sea Continental Shelf Cases Germany Denmark Germany Netherlands Judgement of 20 February 1969 para 74 Note that in the same paragraph the ICJ also stated that State practice “should moreover have occurred in such a way as to show general recognition that a rule of law or legal obligation is involved ” 25 Section 108 b of the Military Penal Code of 1902 as amended in 1981 reads “Anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in b the two Additional Protocols to the Geneva Conventions of 10 June 1977 is liable to imprisonment for up to four years ” 26 Article 109 of the Military Penal Code of 1927 as amended in 1968 reads “Whoever acts contrary to the provisions of international agreements on the conduct of hostilities and the protection of persons and property who violates recognised laws and customs of war will be … punished ” 27 U S Code Title 18 Chapter 118 Section 2441 c 1 defines as a war crime “a grave breach in any of the international conventions signed at Geneva 12 August 1949 or any protocol to such convention to which the United States is a party” The United States has not even ratified either Additional Protocol I or Additional Protocol II 28 Section 1 of the Geneva Conventions Act of 1957 as amended in 1995 punishes grave breaches of the Additional Protocol I referring specifically to Art 85 of the Additional Protocol There is no mention of “terrorization against a civilian population ” 29 The War Crimes Act of 1945 referred to in para 93 of the Judgement was substantially modified in 1989 and did not contain the phrase “murder and massacres – systematic terrorism” thereafter 30 It has to be noted that one of the most recent documents implementing the Rome Statute of an International Criminal Court the 2002 German Code of Crimes Against International Law Völkerstrafgesetzbuch does not encompass this crime or a similar criminal conduct as a crime sui generis Moreover in the course of the legislative proceedings leading to the passing of an act by Parliament ratifying the Additional Protocols in 1990 the government attached an aide mémoire Denkschrift to the draft bill Relating to Article 85 of Additional Protocol I the document states that grave breaches of the Protocol are already covered under the general provisions of German law It makes no mention of other breaches BT-Drucksache 11 6770 p 116 Moreover there was and there is no provision in the German Penal Code penalizing terrorization against the civilian population 31 Book III Title IV Section 2 Art 185 of the Criminal Military Code of War penalizes to “utilise la violence contre des personnes privées ennemies qui ne prennent pas part aux opérations militaires” There is no mention of “terror” 32 The Law of 16 June 1993 penalized in its Art 1ter 11 “le fait de soumettre à une attaque délibérée la population civile ou des personnes civiles qui ne prennent pas directement part aux hostilities” There is no mention of terror The law was repealed in 2003 the new provision in Art 136quater 1 20 of the Belgian Penal Code reads the same 33 Footnote 297 of the Judgement 215 Case No IT-98-29-A 30 November 2006 Protocols I and II in 1979 Contrary to the references in footnote 304 of the Judgement the 1988 Regulations on the Application of International Laws of War in the Armed Forces of the SFRY do not add anything new as the part on “Criminal Responsibility for War Crimes and Other Serious Violations of the Law of War” merely refers back to the Criminal Code 34 14 Furthermore it is doubtful whether the arguments relating to the 1919 Report of the Commission on Responsibilities presented in paragraph 93 of the Judgement withstand careful scrutiny The citations which were also employed in the Trial Judgement35 are taken out of context When reading the original text in the 1948 work by the U N War Crimes Commission one could ask whether the 1919 Commission was not just making a broader statement without actually coining legal definitions In particular the Commission established the fact that multiple violations of the rights of combatants of the rights of civilians and of the rights of both had been committed which were the outcome of the “most cruel practices which primitive barbarism aided by all the resources of modern science could devise for the execution of a system of terrorism carefully planned and carried out to the end Not even prisoners or wounded or women or children have been respected by belligerents who deliberately sought to strike terror into every heart for the purpose of repressing all resistance ”36 It is true that the Commission mentioned “systematic terrorism” on its list of recommended war crimes However it is uncertain what the Commission actually meant by “systematic terrorism” and whether their idea of the concept corresponds to Art 51 2 2nd Sentence of Additional Protocol I and Article 13 2 2nd Sentence of Additional Protocol II Moreover the Judgement correctly states that “the few trials ₣ ğ in Leipzig did not elaborate on the concept of ‘systematic terrorism ’”37 In this context it has to be recalled that there was no penalization of terrorization against a civilian population in either Nuremberg or the Tokyo Charters 38 The same applies to Control Council Law No 10 39 34 Regulations on the Application of International Laws of War in the Armed Forces of the SFRY exhibit P5 1 para 34 p 20 “In conformity with its international obligations the SFRY has prescribed in the Criminal Code of the SFRY Chapter XI – Criminal Offences Against Humanity and International Law that violations of the laws of war referred to in item 33 of these instructions referring inter alia to “the application of measures of intimidation and terror” constitute criminal offences and are punishable … ” 35 Trial Judgement para 116 36 UN War Crimes Commission History of the United Nations War Crimes Commission and the Development of the Laws of War London HMSO 1948 p 33 et seq 37 See Judgement para 93 38 Nuremberg Charter Charter of the International Military Tribunal Annexed to the London Agreement Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis Aug 8 1945 82 U N T S 280 Tokyo Charter Special Proclamation by the Supreme Commander for the Allied Powers Jan 19 1946 T I A S No 1589 4 Bevans 20 39 Law No 10 on the Punishment of Persons Guilty of War Crimes Crimes Against Peace and Against Humanity of 20 December 1945 Official Gazette Control Council for Germany No 3 31 January 1946 216 Case No IT-98-29-A 30 November 2006 15 The Judgement refers in paragraph 97 to a judgement rendered in 1997 by the County Court of Split Croatia It is questionable whether a single judgement can be considered an example of state practice On the contrary one could argue that the existence of just one judgement rendered in a region where there was much comparable criminal conduct actually militates against the proposition that there was relevant state practice 16 Finally it must be considered that the Trial Chamber made no finding as to the nature of the conflict being international or non-international at that time 40 However an additional finding would have been required by the Appeals Chamber even though the relevant provisions of Additional Protocol I applying to international armed conflicts and Additional Protocol II applying to non-international armed conflicts are identical At least pursuant to the view of the majority which is based primarily on an interpretation of the Additional Protocols the Appeals Chamber should have made a much more detailed determination of why according to the opinion of the majority both the relevant provisions of Additional Protocol I and Additional Protocol II would amount to international customary law 41 17 Moreover with all due respect I cannot agree with Judge Meron’s proposition that “the conclusion that criminal responsibility attaches to the prohibition of terrorization against a civilian population also follows logically from the ban … on ‘declaring that no quarter will be given ’”42 For me the argument that “if threats that no quarter will be given are crimes then surely threats that a party will not respect other foundational principles of international law – such as the prohibition against targeting civilians – are also crimes” appears to be incorrect since it could be made in any context in relation to any and every violation of international humanitarian law 43 While the act of declaring that no quarter will be given is undoubtedly penalized under international customary law44 and was so during the Indictment period it is nevertheless distinct from terrorization against a civilian population In particular the placement of Article 40 of Additional Protocol I in the part on methods and means of warfare combatant and prisoner-of-war status under the subsection dealing with methods and means of warfare as well as its origin in Article 23 d of the Hague Regulations 45 makes clear that the prohibition of declaring that no quarter will be given refers to enemy combatants Having said this I agree with Judge Meron that the prohibitions are similar in 40 Trial Judgement para 22 The Judgement at the end of its discussion para 98 on the subject merely states “that customary international law imposed individual criminal liability for violations of the prohibition of terror against the civilian population as enshrined in Article 51 2 of Additional Protocol I and Article 13 2 of Additional Protocol II … ” 42 Separate and Partially Dissenting Opinion of Judge Meron para 2 43 Simma Alston in this context refer to a quote by John Humphrey who observed that “human rights lawyers are notoriously wishful thinkers ” Simma Alston The Sources of Human Rights Law Custom Jus Cogens and General Principles 12 Aust YBIL 82 84 1988-1989 44 See inter alia G Werle Principles of International Criminal Law 2005 margin number 1074 41 217 Case No IT-98-29-A 30 November 2006 nature in that they both aim at protecting those who are either hors-de-combat or civilians However as an international criminal court we are under the obligation to define what is a crime under our Statute with precision in order to avoid any violation of the fundamental principle of nullum crimen sine lege certa 46 18 What then is supposed to be the foundation of state practice apart from the few states mentioned above Moreover while noting that de jure all member States of the United Nations are on an equal footing I nevertheless observe that none of the permanent members of the Security Council or any other prominent state have penalized terrorization against a civilian population 47 19 With regard to opinio juris it is undisputed as mentioned above that there were many statements by states concerning the prohibition of acts and threats of violence the primary purpose of which is to spread terror among the civilian population but not referring to its penalization In any case as the recent Study on Customary International Humanitarian Law carried out by the International Committee of the Red Cross recognizes ₣Iğn the area of international humanitarian law where many rules require abstention from certain conduct omissions pose a particular problem in the assessment of opinio juris because it has to be proved that the abstention is not a coincidence but based on a legitimate expectation 48 20 In addition and even though I am fully aware of Article 1049 of the Statute of the International Criminal Court it must be pointed out that the Rome Statute does not have a provision referring to terrorization against a civilian population If indeed this crime was beyond doubt part of customary international law in 1998 states would undoubtedly have included it in the relevant provisions of the Statute or in their domestic legislation implementing the Statute 50 21 To be abundantly clear The conduct prohibited by Article 51 2 2nd sentence of Additional Protocol I and Article 13 2 2nd sentence of Additional Protocol II namely acts and threats of violence the primary purpose of which is to spread terror among the civilian population should be 45 See also Sandoz Swinarski Zimmermann eds Commentary on the Additional Protocols margin number 1591 Indeed I am aware of – as Simma and Alston put it in a different context – “the temptation to adapt or re-interpret the concept of customary international law in such a way as to ensure that it provides the ‘right’ answers ” See Simma Alston supra note 43 p 83 As a criminal court we shall however never yield to this temptation 47 Indeed Judge Nieto-Navia in his Dissenting Opinion strictly and rigidly observed that “these limited references to State practice given by the Trial Judgement do not suffice to establish that this offence existed as a form of liability under international customary law and attracted individual criminal responsibility under that body of law ” Trial Judgement Dissenting Opinion of Judge Nieto-Navia para 113 48 Henckaerts Doswald-Beck eds Customary International Law Humanitarian Law 2005 Vol I Rules p xli 49 Article 10 of the Statute of the International Criminal Court reads as follows “Nothing in this Part ₣Jurisdiction Admissibility and Applicable Lawğ shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute ” 50 For example the German Code of Crimes Against International Law does not have a provision penalizing the terrorization against a civilian population see also supra note 30 46 218 Case No IT-98-29-A 30 November 2006 penalized as a crime sui generis However this Tribunal is not acting as a legislator it is under the obligation to apply only customary international law applicable at the time of the criminal conduct in this case the time between 1992 and 1994 It is not necessary to dwell on the question of whether today the crime of terrorization against a civilian population is part of customary international law In fact there might be some indicators that this is indeed the case However one cannot conscientiously base a conviction in criminal matters on a “continuing trend of nations criminalising terror as a method of warfare” 51 or on a “trend in prohibiting terror ₣…ğ continued after 1992”52 The use of the term “trend” clearly indicates that at the time of the commission of the crimes in question this development had not yet amounted to undisputed state practice The case in question is about a conduct that happened fourteen years ago which must be assessed accordingly The International Tribunal is required to adhere strictly to the principle of nullum crimen sine lege praevia and must ascertain that a crime was “beyond any doubt part of customary law ”53 It would be detrimental not only to the Tribunal but also to the future development of international criminal law and international criminal jurisdiction if our jurisprudence gave the appearance of inventing crimes – thus highly politicizing its function – where the conduct in question was not without any doubt penalized at the time when it took place 22 It is even less understandable in the present case why the majority chose this wrong approach when it would have been possible to arrive at the same result in an undisputable way i e overturn Galić’s conviction under Count 1 and convict him under Counts 4 and 7 for the same underlying criminal conduct namely the campaign of shelling and sniping constituting the crime of attacks on civilians this offence being without any doubt part of customary international law In light of the finding of the Trial Chamber which held that Galić “intended to conduct that campaign with the primary purpose of spreading terror within the civilian population of Sarajevo” it would have been furthermore possible to consider this an aggravating circumstance in sentencing which would also necessitate the adjusted sentence as handed down by the Appeals Chamber D Conclusion 23 Considering Galić’s individual criminal responsibility as affirmed on appeal it was the Appeals Chamber’s right and obligation to substantially increase the sentence handed down by the Trial Chamber 24 However the Appeals Chamber erroneously upheld Galić’s conviction under Count 1 of the Indictment for the crime of acts and threats of violence the primary purpose of which is to spread 51 52 See already supra para 13 Judgement footnotes 286 and 287 219 Case No IT-98-29-A 30 November 2006 terror among the civilian population While the prohibition of such acts and threats was part of international customary law at the time Galić’s criminal conduct took place in my view the same cannot be conscientiously said about its penalization Galić has to be convicted of the crime of attacks on civilians under Counts 4 and 7 for the same underlying criminal conduct His primary purpose to spread terror among the civilian population has to be taken into account as one aggravating factor in sentencing thereby inter alia necessitating the adjusted sentence Done in English and French the English text being authoritative Dated this 30th day of November 2006 At the Hague The Netherlands __________________ Wolfgang Schomburg Judge Seal of the International Tribunal 53 Report of the Secretary-General supra note 1 para 34 220 Case No IT-98-29-A 30 November 2006 XXIII ANNEX A PROCEDURAL BACKGROUND A History of Trial Proceedings 1 An initial indictment against Stanislav Gali and Dragomir Milo evi was confirmed by Judge Antonio Cassese on 24 April 1998 1 On 15 March 1999 Judge Cassese granted leave to the Prosecution to file a separate indictment naming only Gali for transmission to the Registry and to SFOR 2 The Indictment was filed on 26 March 1999 and charged Gali pursuant to Article 7 1 and 7 3 of the Statute with seven counts under Articles 3 and 5 of the Statute 3 2 Gali was arrested by SFOR on 20 December 1999 His initial appearance before the Trial Chamber was held on 29 December 1999 and he entered a plea of not guilty to all of the charges against him The trial commenced on 3 December 2001 and lasted 223 days In the course of the proceedings 171 witnesses gave evidence and five Rule 92bis witness statements and 15 expert reports were admitted All expert witnesses gave oral evidence in court A total of 603 Prosecution exhibits 651 Defence exhibits and 14 Chamber exhibits were admitted into evidence 32 documents were marked for identification 4 3 The Trial Judgement was rendered on 5 December 2003 Trial Chamber I by majority found Galić guilty of acts of violence the primary purpose of which was to spread terror among the civilian population as set forth in Article 51 of Additional Protocol I to the Geneva Conventions of 1949 a violation of the laws or customs of war Count 1 murder as a crime against humanity Count 2 inhumane acts other than murder as a crime against humanity Count 3 murder as a crime against humanity Count 5 and inhumane acts other than murder as a crime against humanity Count 6 As a consequence of the finding of guilt it entered on Count 1 the Trial Chamber dismissed Counts 4 and 7 attacks on civilians as set forth in Article 51 of Additional Protocol I and Article 13 of Additional Protocol II to the Geneva Conventions of 1949 as a violations of the laws or customs of war because they were impermissibly cumulative 5 Galić was sentenced to a single sentence of 20 twenty years of imprisonment 6 1 Prosecutor v Stanislav Gali and Dragomir Milo evi Case No IT-98-29-I Review of the Indictment 24 April 1998 2 Prosecutor v Stanislav Gali and Dragomir Milo evi Case No IT-98-29-I Ex parte and Confidential Order on Prosecution Motion 15 March 1999 3 Prosecutor v Dragomir Milo evi Case No IT-98-29-I Indictment 26 March 1999 4 Trial Judgement para 784 5 Trial Judgement paras 159-162 751-752 6 Trial Judgement para 769 Disposition 221 Case No IT-98-29-A 30 November 2006 B The Appeal 1 Notices of Appeal 4 The Prosecution filed its Notice of Appeal on 18 December 2003 7 It appealed the sentence against Galić considering it “manifestly inadequate” in light of the gravity of the crimes and his degree of criminal responsibility On 22 December 2003 the Pre-appeal Judge granted Gali an extension of time by which he had to file the Notice of Appeal until 30 days from the day he received the French version of the Trial Judgement following his request for an extension of time filed on 18 December 8 Gali filed his Notice of Appeal on 4 May 2004 containing 19 grounds of appeals alleging various errors of law and of facts 9 2 Composition of the Appeals Chamber 5 By order of 18 December 2003 the then-President of the Tribunal Judge Theodor Meron designated the following Judges to form the Appeals Chamber in these proceedings Judge Theodor Meron Presiding Judge Fausto Pocar Judge Mohamed Shahabuddeen Judge Florence Ndepele Mwachande Mumba and Judge Wolfgang Schomburg 10 Pursuant to Rule 65ter and Rule 107 of the Rules Judge Mumba was designated Pre-Appeal Judge 11 6 On 18 November 2005 Judge Mehmet Güney was assigned to replace Judge Florence Ndepele Mwachande Mumba as Pre-Appeal Judge following the expiration of her term effective 16 November 2005 as a member of the Appeals Chamber 12 Following the appointment of Judge Fausto Pocar as President of the Tribunal on 17 November 2005 Judge Fausto Pocar replaced Judge Theodor Meron as the Presiding Judge in this appeal pursuant to Article 14 2 of the Statute 13 On 22 November 2005 the President of the Tribunal assigned Judge Theodor Meron as Pre-Appeal Judge in replacement of Judge Mehmet Güney and ordered the recomposition of the Appeals Chamber hearing the case accordingly 14 7 Prosecutor v Stanislav Gali Case No IT-98-29-A Prosecution Notice of Appeal 18 December 2003 Prosecutor v Stanislav Gali Case No IT-98-29-A Decision on Request for Extension of Time to File Notice of Appeal 22 December 2003 9 Prosecutor v Stanislav Gali Case No IT-98-29-A Defence Notice of Appeal 4 May 2004 filed in French 5 May 2004 10 Prosecutor v Stanislav Gali Case No IT-98-29-A Order Assigning Judges to a Case Before the Appeals Chamber and Designating a Pre-Appeal Judge 18 December 2003 11 Ibid 12 Prosecutor v Stanislav Gali Case No IT-98-29-A Order Replacing a Judge in a Case Before the Appeals Chamber 18 November 2005 13 Ibid 14 Prosecutor v Stanislav Gali Case No IT-98-29-A Order Reassigning a Pre-Appeal Judge 22 November 2005 8 222 Case No IT-98-29-A 30 November 2006 3 Filing of the Appeal Briefs The Prosecution filed its Appeal Brief on 2 March 2004 15 Gali responded on 2 April 7 2004 16 and the Prosecution filed its Reply Brief on 13 April 2004 17 After first being denied18 and then partly granted his motion for a leave to exceed the page 8 limit 19 Gali filed his Appeal Brief on 19 July 2004 20 The Prosecution filed its Response Brief on 6 September 2004 21 after being granted an extension of the time limit 22 Gali filed his Reply Brief on 27 September 2004 23 after being granted leave to exceed the page and time limits 24 4 Motions to Strike 9 On 20 August 2004 the Prosecution filed a motion asking the Appeals Chamber to strike the Defence Appeal Brief and to order Gali to re-file it 25 Galić responded on 26 August 200426 and the Prosecution replied on 27 August 2004 27 The motion of the Prosecution was denied on 2 September 2004 28 10 On 29 October 2004 the Prosecution filed a motion requesting the Appeals Chamber to strike passages from the Defence Appeal Brief Book of Authorities and Defence Reply Brief insofar as they related to a letter from the ICRC which the Prosecution claimed constituted new 15 Prosecutor v Stanislav Gali Case No IT-98-29-A Prosecution Appeal Brief 2 March 2004 The related Book of Authorities was filed the same day A Supplementary Book of Authority was filed on 28 August 2006 16 Prosecutor v Stanislav Gali Case No IT-98-29-A Defence Response Brief 2 April 2004 The related Book of Authorities was filed the same day 17 Prosecutor v Stanislav Gali Case No IT-98-29-A Prosecution Reply Brief 13 April 2004 The related Book of Authorities was filed on 16 April 2004 18 Prosecutor v Stanislav Gali Case No IT-98-29-A Decision on Defence’s Request for Leave to Exceed Page Limit in Defence’s Appellant’s Brief 19 May 2004 19 Prosecutor v Stanislav Gali Case No IT-98-29-A Decision on Defence’s Request for Reconsideration 16 July 2004 20 Prosecutor v Stanislav Gali Case No IT-98-29-A Defence Appeal Brief 19 July 2004 A corrigendum was filed on 29 July 2004 The related Book of Authorities was filed on 19 July 2004 21 Prosecutor v Stanislav Gali Case No IT-98-29-A Prosecution Response Brief 6 September 2004 22 Prosecutor v Stanislav Gali Case No IT-98-29-A Decision on Prosecution's Request for Extension of Time to file Respondent's Brief 28 July 2004 On 1 September 2004 a corrigendum to the decision was filed 23 Prosecutor v Stanislav Gali Case No IT-98-29-A Defence Brief in Reply 27 September 2004 24 Prosecutor v Stanislav Gali Case No IT-98-29-A Decision on Defence's Motion to Increase Page Limit and Extend the Time Limit 17 September 2004 25 Prosecutor v Stanislav Gali Case No IT-98-29-A Urgent Prosecution Motion for an Order Requiring the Appellant to Re-file his Appeal Brief and Requests for Leave to Exceed Word-limit for Motion 20 August 2004 corrected 24 August 2004 in a corrigendum 26 Prosecutor v Stanislav Gali Case No IT-98-29-A Defence Response to Prosecution Motion Dated 20 August 2004 26 August 2004 27 Prosecutor v Stanislav Gali Case No IT-98-29-A Prosecution Reply to “Defence Response to Prosecution Motion Dated 20 August 2004” 27 August 2004 28 Prosecutor v Stanislav Gali Case No IT-98-29-A Decision on “Urgent Prosecution Motion for an Order Requiring the Appellant to Re-file his Appeal Brief and Request for Leave to Exceed Word-limit for Motion” 2 September 2004 223 Case No IT-98-29-A 30 November 2006 factual material 29 The Prosecution asked in the alternative that the Appeals Chamber require Galić to file a motion addressing the admissibility criteria for Rule 115 Galić responded on 3 November 2004 30 and the Prosecution filed its reply on 8 November 2004 31 On 3 December 2004 the Appeals Chamber directed Gali to file a motion pursuant to Rule 115 if he wished to retain the grounds of appeal to which the letter was directed 32 11 On 30 November 2004 the Prosecution filed a further motion requesting the Appeals Chamber to strike an argument in the Defence Reply Brief on the basis that it raised an allegation not contained in the Defence Notice of Appeal or Defence Appeal Brief 33 Gali responded on 3 December 2004 34 and the Prosecution filed its reply on 7 December 2004 35 On 28 January 2005 the Appeals Chamber granted the Prosecution’s motion and ordered that the passage be struck from the Defence Reply Brief 36 5 Rule 115 Motions 12 On 18 June 2004 Gali filed a confidential motion requesting the Appeals Chamber to allow the admission of additional evidence 37 After being granted38 a request for extension of time to file its response 39 the Prosecution responded on 12 July 2004 40 Gali requested leave to reply under Rule 126bis 41 to which the Prosecution responded on 20 July 2004 42 The Defence filed its 29 Prosecutor v Stanislav Gali Case No IT-98-29-A Prosecution Motion to Strike Portions of Appellant’s Appeal Brief Book of Authorities and Reply Brief 29 October 2004 30 Prosecutor v Stanislav Gali Case No IT-98-29-A Defence Response on Prosecution’s Motion Dated 29 October 2004 3 November 2004 31 Prosecutor v Stanislav Gali Case No IT-98-29-A Reply to “Defence Response on Prosecution’s Motion dated 29 October 2004” 8 November 2004 32 Prosecutor v Stanislav Gali Case No IT-98-29-A Decision on Prosecution’s Motion to Strike Portions of Appellant’s Appeal Brief Book of Authorities and Reply Brief 3 December 2004 33 Prosecutor v Stanislav Gali Case No IT-98-29-A Motion to Strike New Argument Alleging Errors by Trial Chamber Raised for First Time in Appellant’s Reply Brief 30 November 2004 34 Prosecutor v Stanislav Gali Case No IT-98-29-A Defence Response to Prosecution’s Motion to Strike New Argument Alleging Error by Trial Chamber Raised for the First Time in Appellant’s Reply Brief 3 December 2004 35 Prosecutor v Stanislav Gali Case No IT-98-29-A Reply to Defence Response to Prosecution’s Motion to Strike New Argument Alleging Error 7 December 2004 36 Prosecutor v Stanislav Gali Case No IT-98-29-A Decision on Prosecutions Motion to Strike New Argument Alleging Errors by Trial Chamber Raised for First Time in Appellant’s Reply Brief 28 January 2005 37 Prosecutor v Stanislav Gali Case No IT-98-29-A Confidential Defence Motion to Present Before the Appeals Chamber Additional Evidence 18 June 2004 38 Prosecutor v Stanislav Gali Case No IT-98-29-A Decision on Prosecution’s Request for Extension of Time to file Response to Defence Additional Evidence Motion of 18 June 2004 28 June 2004 39 Prosecutor v Stanislav Gali Case No IT-98-29-A Prosecution’s Request for Extension of Time to File Response to Defence Additional Evidence Motion of 18 June 2004 23 June 2004 40 Prosecutor v Stanislav Gali Case No IT-98-29-A Prosecution Response to Defence Motion to Present Additional Evidence dated 18 June 2004 12 July 2004 41 Prosecutor v Stanislav Gali Case No IT-98-29-A Defense’s Request for the Approval for Replay sic Under rule 126bis 19 July 2004 42 Prosecutor v Stanislav Gali Case No IT-98-29-A Prosecution Response to Defence Request for Leave to Reply Dated 19 July 2004 20 July 2004 224 Case No IT-98-29-A 30 November 2006 reply on 20 July 2004 43 On 21 July 2004 the Appeals Chamber granted the Prosecution an extension of the page limit and recognised its motion as validly filed 44 The Appeals Chamber also granted in part Galić’s motion as to leave to reply and recognised the Rule 115 reply as validly filed 45 13 On 2 February 2005 however the Appeals Chamber found that Gali ’s motion did not comply with the requirements set out in Practice Direction IT 201 and invited him to re-file his motion 46 It was re-filed on 11 February 2005 47 The Prosecution after being granted an extension of the time and page limits 48 filed its response on 28 February 2005 49 Gali replied on 4 March 2005 50 The Appeals Chamber dismissed the motion on 30 June 2005 51 14 After being invited to do so in the Appeals Chamber’s Decision on the Prosecution’s Motion to Strike Portions of the Appellant’s Appeal Brief Book of Authorities and Reply Brief 52 Gali filed a motion pursuant to Rule 115 to have the letter from the ICRC permitted as additional evidence on 7 December 2004 53 The Prosecution responded on 17 December 2004 to which Gali replied on 23 December 2004 54 The Rule 115 motion was dismissed by the Appeals Chamber on 22 March 2005 55 15 On 20 January 2005 Gali requested that further additional evidence be admitted on his 56 appeal After being granted57 its request for an extension of time and for an order requiring 43 Prosecutor v Stanislav Gali Case No IT-98-29-A Defence Reply to the Prosecution’s Response Under Rule 126bis 20 July 2004 re-filed 28 July 2004 owing to two missing lines in paragraph 1 of the document and corrected in a corrigendum 29 July 2004 44 Prosecutor v Stanislav Gali Case No IT-98-29-A Decision on Prosecution’s Request for an Extension of Pages 21 July 2004 45 Prosecutor v Stanislav Gali Case No IT-98-29-A Decision on Defence’s Request “Pursuant to Rule 126bis” 21 July 2004 46 Prosecutor v Stanislav Gali Case No IT-98-29-A Order on Appellant’s Confidential Motion to Present Additional Evidence Before the Appeals Chamber Under Rule 115 2 February 2005 47 Prosecutor v Stanislav Gali Case No IT-98-29-A Confidential Defence Motion to Present Before the Appeals Chamber Additional Evidence 11 February 2005 48 Prosecutor v Stanislav Gali Case No IT-98-29-A Decision on Prosecution’s Requests for Extensions of Time and of Page Limit for the Response 21 February 2005 49 Prosecutor v Stanislav Gali Case No IT-98-29-A Prosecution Response to Defence Re-filed First Rule 115 Motion 28 February 2005 50 Prosecutor v Stanislav Gali Case No IT-98-29-A Defence Reply to Prosecution’s Response 4 March 2005 51 Prosecutor v Stanislav Gali Case No IT-98-29-A Decision on the First and Third Rule 115 Defence Motions to Present Additional Evidence Before the Appeals Chamber 30 June 2005 52 Prosecutor v Stanislav Gali Case No IT-98-29-A Decision on Prosecution’s Motion to Strike Portions of the Appellant’s Appeal Brief Book of Authorities and Appeal Brief 3 December 2004 53 Prosecutor v Stanislav Gali Case No IT-98-29-A Defence Request for Admission of Further Additional Evidence on Appeal 7 December 2004 54 Prosecutor v Stanislav Gali Case No IT-98-29-A Reply to Prosecution’s Response Dated 17 December 2004 23 December 2004 55 Prosecutor v Stanislav Gali Case No IT-98-29-A Decision on Defence Second Motion for Additional Evidence Pursuant to Rule 115 22 March 2005 56 Prosecutor v Stanislav Gali Case No IT-98-29-A Defence Motion to Present Before the Appeals Chamber Additional Evidence 20 January 2005 225 Case No IT-98-29-A 30 November 2006 official translations of documents attached to Gali ’s motion 58 the Prosecution filed its confidential response on 21 March 2005 59 Gali filed his reply on 29 March 2005 60 The Rule 115 motion was dismissed by the Appeals Chamber on 30 June 2005 61 16 On 18 March 2005 Gali confidentially filed a fourth Rule 115 motion 62 The Prosecution filed a confidential response on 8 April 2005 63 and Gali subsequently filed his confidential reply on 12 April 2005 64 The Appeals Chamber dismissed the Rule 115 motion on 29 August 2005 65 17 On 26 April 2005 the Prosecution filed partly confidentially a request seeking leave to file a further response to the replies filed by Gali supporting the third Rule 115 motion and a subsequent motion 66 On 28 April 2005 Gali filed a response opposing the Prosecution’s request for leave 67 Given the merits of its decision delivered on 30 June 2005 the Appeals Chamber did not find it necessary to address the matters raised in the Prosecution’s request for leave and in the attached consolidated response insofar as they related to the third Rule 115 motion 68 18 On 29 June 2006 the Prosecution filed a status report “to notify the Chamber that the Ministry of Defence of Bosnia and Herzegovina recently informed the Office of the Prosecutor that it has been compiling an archive of military documents from both the Republika Srpska and the Federation of Bosnia and Herzegovina which includes inter alia material from the Sarajevo Romanija Corps ₣…ğ during the time period relevant to this case ”69 A day later Galić filed a 57 Prosecutor v Stanislav Gali Case No IT-98-29-A Decision on Prosecution’s Request for Extension of Time and for an Order Requiring Official Translations of Documents Attached to the Defence Third Motion for Additional Evidence 7 February 2005 58 Prosecutor v Stanislav Gali Case No IT-98-29-A Prosecution Request for Extension of Time and for Order Requiring Official Translations of Documents attached to Defence Additional Evidence Motion 26 January 2005 59 Prosecutor v Stanislav Gali Case No IT-98-29-A Prosecution’s Response to Gali Third Rule 115 Motion 21 March 2005 The Prosecution had however been denied an extension of page limit in the Appeals Chamber’s Decision on Request for Extension of Page Limit for the Prosecution’s Response to Gali ’s Third Rule 115 Motion 16 March 2005 60 Prosecutor v Stanislav Gali Case No IT-98-29-A Defence Reply to Prosecution’s Response Dated 21 March 2005 29 March 2005 61 Prosecutor v Stanislav Gali Case No IT-98-29-A Decision on the First and Third Rule 115 Defence Motions to Present Additional Evidence Before the Appeals Chamber 30 June 2005 62 Prosecutor v Stanislav Gali Case No IT-98-29-A Confidential Defence Motion to Present Before the Appeals Chamber Additional Evidence 18 March 2005 63 Prosecutor v Stanislav Gali Case No IT-98-29-A Prosecution’s Response to Gali ’s Fourth Rule 115 Motion Confidential 8 April 2005 64 Prosecutor v Stanislav Gali Case No IT-98-29-A Confidential Defence Reply to Prosecution’s Response to Gali ’s Fourth Rule 115 Motion 12 April 2005 65 Prosecutor v Stanislav Gali Case No IT-98-29-A Decision on Fourth Defence Motion to Present Additional Evidence Before the Appeals Chamber 29 August 2005 66 Prosecutor v Stanislav Gali Case No IT-98-29-A Prosecution’s Request for Leave to File a Consolidated Further Response to Defence Replies Concerning Third and Fourth Rule 115 Motions 26 April 2005 67 Prosecutor v Stanislav Gali Case No IT-98-29-A Defence Reply to Prosecution's Request for Leave to File Consolidated Further Response to Defence Replies Concerning Third and Fourth Rule 115 Motions 28 April 2005 68 Prosecutor v Stanislav Gali Case No IT-98-29-A Decision on the First and Third Rule 115 Defence Motions to Present Additional Evidence Before the Appeals Chamber 30 June 2005 para 9 69 Prosecutor v Stanislav Galić Case No IT-98-29-A Prosecution Status Report 29 June 2006 226 Case No IT-98-29-A 30 November 2006 motion requesting 1 “an extension before deciding if they will file a new motion under the Rule 115” 2 the Appeals Chamber to “allow the counsel to examine the mentioned documents ₣in the archives of the ABiH 1st Corpsğ in the presence of its military expert” 3 “that the Appeals Chamber orders the Defence to seek the translations in English from the Registry and that being done files a motion under Rule 115 in the next 10 days” and 4 the Appeals Chamber to decide about the hearing planned for 29 August 2006 70 The Appeals Chamber denied the Defence Motion on 14 July 2006 71 19 On 22 August 2006 Galić filed his fifth Rule 115 motion 72 The Prosecution filed a response on 23 August 2006 73 and Galić filed his reply on 24 August 2006 74 The Appeals Chamber denied the Defence Motion and dismissed the Motion to Dismiss on 28 August 2006 75 20 On 8 September 2006 Galić filed his sixth Rule 115 Motion “Defence Motion” 76 The Prosecution filed its response on 29 September 2006 77 On 4 October 2006 the Defence filed “Additional Observations on the Defence Motion to Present Before the Appeals Chamber Additional Evidence Dated 7 September 2006 Rule 115 of the Rules of Procedure and Evidence” “Additional Observations” 78 On 29 September 2006 the Prosecution filed the “Prosecution Motion to Strike Defence Additional Observations to the 6th Defence Motion to Present Additional Evidence” “Motion to Strike” 79 On 15 November 2006 the Appeals Chamber granted the Motion to Strike and denied the Defence Motion 80 70 Prosecutor v Stanislav Galić Case No IT-98-29-A Defence Motion Regarding New Evidence 11 July 2006 Prosecutor v Stanislav Galić Case No IT-98-29-A Decision on Defence Motion Regarding New Evidence 14 July 2006 72 Prosecutor v Stanislav Galić Case No IT-98-29-A Defence Motion to Present Before the Appeals Chamber Additional Evidence 22 August 2006 73 Prosecutor v Stanislav Galić Case No IT-98-29-A Prosecution’s Motion to Dismiss Defence’s 5th Motion for Additional Evidence 23 August 2006 74 Prosecutor v Stanislav Galić Case No IT-98-29-A Appelant’s Response to Prosecution’s Motion to Dismiss Defence’s 5th Motion for Additional Evidence 24 August 2006 75 Prosecutor v Stanislav Galić Case No IT-98-29-A Decision on Defence Motion to Present Additional Evidence 24 August 2006 76 Prosecutor v Stanislav Galić Case No IT-98-29-A Defence Motion to Present Before the Appeals Chamber Additional Evidence 8 September 2006 77 Prosecutor v Stanislav Galić Case No IT-98-29-A Prosecution’s Response to 6th Defence Motion to Present Additional Evidence 29 September 2006 78 The signature page of the Additional Observations is dated 28 September 2006 79 The Prosecution received a copy of the Additional Observations on 29 September 2006 and believed that the Additional Observations were filed on 28 September 2006 Motion to Strike para 1 and fn 1 80 Prosecutor v Stanislav Galić Case No IT-98-29-A Decision on Defence Motion to Present Additional Evidence 15 November 2006 71 227 Case No IT-98-29-A 30 November 2006 6 Requests for Provisional Release 21 On 4 March 2005 Gali filed a request for provisional release to attend the memorial service of his late sister pursuant to Rule 65 I of the Rules 81 The Prosecution filed its response on 9 March 2005 82 After receiving guarantees from the government of Republika Srpska 83 the Appeals Chamber granted the request in part and ordered the provisional release of Gali for the fixed period from 31 March 2005 to 3 April 2005 84 22 On 6 September 2005 Galić filed a second request for provisional release seeking provisional release pending his appeal hearing to Banja Luka Republika Srpska pursuant to Rule 65 I of the Rules 85 The Prosecution filed its response on 15 September 2005 opposing the request 86 Gali filed his reply on 19 September 2005 87 On 31 October 2005 not satisfied with regard to the first requirement of Rule 65 I the Appeals Chamber dismissed the request 88 7 Status Conferences 23 Status Conferences in accordance with Rule 65bis of the Rules were held on 31 March 2004 28 July 2004 22 November 2004 11 March 2005 7 July 2005 2 November 2005 2 March 2006 and 29 June 2006 8 Appeal Hearing 24 Pursuant to the Scheduling Orders of 21 June 2006 and of 14 August 2006 89 the hearing on the merits of the appeal took place on 29 August 2006 81 Prosecutor v Stanislav Gali Case No IT-98-29-A Defence Request for Provisional Release of General Gali 4 March 2005 82 Prosecutor v Stanislav Gali Case No IT-98-29-A Prosecution’s Response to Defence Request for Provisional Release of General Stanislav Gali 9 March 2005 83 Prosecutor v Stanislav Gali Case No IT-98-29-A RS Government Guarantees for Provisional Release of General Stanislav Gali 21 March 2005 84 Prosecutor v Stanislav Gali Case No IT-98-29-A Decision on Defence Request for Provisional Release of Stanislav Gali 23 March 2005 85 Prosecutor v Stanislav Gali Case No IT-98-29-A Appellant’s Request for Provisional Release filed on 6 September 2005 86 Prosecutor v Stanislav Gali Case No IT-98-29-A Prosecution’s Response to Gali ’s Request for Provisional Release on Appeal 15 September 2005 87 Prosecutor v Stanislav Gali Case No IT-98-29-A Appellant’s Reply to Prosecution’s Response to Appellant’s Request for Provisional Release on Appeal 19 September 2005 88 Prosecutor v Stanislav Gali Case No IT-98-29-A Decision on Second Defence Request for Provisional Release of Stanislav Gali 31 October 2005 89 The additional Scheduling Order informed the parties about the timetable for the Appeal Hearing 228 Case No IT-98-29-A 30 November 2006 XXIV ANNEX B GLOSSARY OF TERMS A List of Tribunal and Other Decisions 1 International Tribunal ALEKSOVSKI Prosecutor v Zlatko Aleksovski Case No IT-95-14 1-A Judgement 24 March 2000 “Aleksovski Appeal Judgement” BABI Prosecutor v Milan Babi Case No IT-03-72-A Judgement on Sentencing Appeal 18 July 2005 “Babi Judgement on Sentencing Appeal” BLAGOJEVI Prosecutor v Blagojevi IT-02-60-T Decision on Blagojevi ’s Motion for Clarification 27 March 2003 BLA KI Prosecutor v Tihomir Blaškić Case No IT-95-14-T Judgement 3 March 2000 “Blaškić Trial Judgement” Prosecutor v Tihomir Blaškić Case No IT-95-14-A Judgement 29 July 2004 “Blaškić Appeal Judgement” BRĐANIN AND TALI Prosecutor v Radoslav Brđanin and Momir Talić Case No IT-99-36-PT Decision on Application by Momir Talić for the Disqualification and Withdrawal of a Judge 18 May 2000 “Tali Decision on Disqualification and Withdrawal of a Judge” ČELEBIĆI Prosecutor v Zejnil Delalić Zdravko Mucić a k a “Pavo” Hazim Delić and Esad Landžo a k a “Zenga” Case No IT-96-21-T Decision of the President on the Prosecutor's Motion for the Production of Notes Between Zejnil Delalić and Zdravko Mucić 11 November 1996 “Delalić et al Decision on Production of Notes” Prosecutor v Zejnil Delalić Zdravko Mucić a k a “Pavo” Hazim Delić and Esad Landžo a k a “Zenga” Case No IT-96-21-T Order on the Prosecutor’s Motion on the Order of Appearance of Defence Witnesses and the Order of Cross-Examination by the Prosecution and Counsel for the Coaccused 3 April 1998 “Delali et al Order on Witness Appearances” Prosecutor v Zejnil Delalić Zdravko Mucić a k a “Pavo” Hazim Delić and Esad Landžo a k a “Zenga” Case No IT-96-21-T Judgement 16 November 1998 “Čelebići Trial Judgement” Prosecutor v Zejnil Delalić Zdravko Mucić a k a “Pavo” Hazim Delić and Esad Landžo a k a “Zenga” Case No IT-96-21-A Judgement 20 February 2001 “Čelebići Appeal Judgement” ERMAK AND MARKAC Prosecutor v Ivan Čermak and Mladen Markac Case No IT-03-73-PT Decision on Ivan Čermak and Mladen Markač’s Motion on Form of Indictment 8 March 2005 229 Case No IT-98-29-A 30 November 2006 DERONJI Prosecutor v Miroslav Deronji Case No IT-02-61-S Sentencing Judgement 30 March 2004 “Deronji Sentencing Judgement” Prosecutor v Miroslav Deronji Case No IT-02-61-A Judgement on Sentencing Appeal 20 July 2005 “Deronji Sentencing Appeal Judgement” FURUNDŽIJA Prosecutor v Anto Furundžija Case No IT-95-17 1-A Judgement 21 July 2000 “Furundžija Appeal Judgement” GALI Prosecutor v Gali Case No IT-98-29-PT Prosecutor’s Further Response to Defence Reply and Documents on Motion for Provisional Release 29 June 2000 filed 30 June 2000 Prosecutor v Stanislav Galić Case No IT-98-29-PT Decision on the Defence Motion for Indicating that the First and Second Schedule to the Indictment Dated 10th October 2001 Should be Considered as the Amended Indictment 19 October 2001 “Trial Decision on Indictment Schedules” Prosecutor v Stanislav Gali Case No IT-98-29-AR72 Decision on Application by Defence for Leave to Appeal 30 November 2001 “Appeal Decision on Indictment Schedules” Prosecutor v Stanislav Galić IT-98-29-AR73 Decision On Application By Prosecution For Leave To Appeal 14 December 2001 Prosecutor v Stanislav Galić Case No IT-98-29-T Decision on the Motion for the Entry of Acquittal of the Accused Stanislav Galić 3 October 2002 Prosecutor v Stanislav Gali Case No IT-98-29-T Defence Submission Regarding the Possible and Hypothetical Hearing of General Stanislav Gali as a Witness 21 January 2003 Prosecutor v Stanislav Gali Case No IT-98-29-T Confidential Decision on Certification Pursuant to Rule 73 B Regarding the Possible Testimony of the Accused as a Witness 4 February 2003 “Certification Decision” Prosecutor v Stanislav Gali Case No IT-98-29-T Confidential Decision on Prosecution’s Motion for the Trial Chamber to Travel to Sarajevo 4 February 2003 “On-site Visit Decision” Prosecutor v Stanislav Gali Case No IT-98-29-AR54 Decision on Appeal from Refusal of Application for Disqualification and Withdrawal of Judge 13 March 2003 “Appeal Decision on Disqualification” Prosecutor v Stanislav Gali Case No IT-98-29-T Decision on Gali ’s Application Pursuant to Rule 15 B Bureau 28 March 2003 “Galić Bureau Decision on Disqualification” Prosecutor v Stanislav Galić Case No IT-98-29-T Judgement and Opinion 5 December 2003 “Trial Judgement” Prosecutor v Stanislav Galić Case No IT-98-29-T Separate and Partially Dissenting Opinion of Judge Nieto-Navia 5 December 2003 “Separate and Partially Dissenting Opinion” Prosecutor v Gali Case No IT-98-29-A Decision on Defence’s Request for Reconsideration 16 July 2004 230 Case No IT-98-29-A 30 November 2006 Prosecutor v Gali Case No IT-98-29-A Decision on “Urgent Prosecution Motion for an Order Requiring the Appellant to Re-File His Appeal Brief and Request for Leave to Exceed Word-Limit for Motion” 2 September 2004 Prosecutor v Stanislav Gali Case No IT-98-29-A Decision on Prosecution’s Motion to Strike Portions of Appellant’s Brief Book of Authority and Reply Brief 3 December 2004 Prosecutor v Stanislav Gali Case No IT-98-29-A Decision on Defence Second Motion for Additional Evidence Pursuant to Rule 115 21 March 2005 Prosecutor v Stanislav Gali Case No IT-98-29-A Scheduling Order for Appeal Hearing 14 August 2006 HAD@IHASANOVI ALAGI AND KUBURA Prosecutor v Enver Had ihasanovi Mehmed Alagi and Amir Kubura Case No IT-01-47-AR72 Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility 16 July 2003 “Had ihasanovi et al Appeal Decision on Jurisdiction in Relation to Command Responsibility” Prosecutor v Enver Had ihasanovi Mehmed Alagi and Amir Kubura Case No IT-01-47AR73 3 Decision on Joint Defence Interlocutory Appeal of Trial Chamber Decision on Rule 98bis Motions for Acquittal 11 March 2005 JELISIĆ Prosecutor v Goran Jelisić Case No IT-95-10-A Judgement 5 July 2001 “Jelisić Appeal Judgement” JOKIĆ Prosecutor v Miodrag Jokić Case No IT-01-42 1-A Judgement on Sentencing Appeal 30 August 2005 “Jokić Judgement on Sentencing Appeal” KORDIĆ AND ČERKEZ Prosecutor v Kordić et al Case No IT-95-14-I Decision on the Review of the Indictment 10 November 1995 Prosecutor v Dario Kordi and Mario Čerkez Case No IT-95-14 2-PT Decision on Joint Defense Motion to Dismiss the Amended Indictment for Lack of Jurisdiction Based on the Limited Jurisdictional Reach of Articles 2 3 2 March 1999 “Kordić and Čerkez Jurisdiction Decision” Prosecutor v Dario Kordi and Mario Čerkez Case No IT-95-14 2-T Decision on Prosecutor’s Motion on Trial Procedure 19 March 1999 “Kordi and erkez Trial Procedure Decision” Prosecutor v Dario Kordić and Mario Čerkez Case No IT-95-14 2-T Judgement 26 February 2001 “Kordi and erkez Trial Judgement” Prosecutor v Dario Kordić and Mario Čerkez Case No IT-95-14 2-A Order to File Amended Grounds of Appeal 18 February 2002 Prosecutor v Dario Kordić and Mario Čerkez Case No IT-95-14 2-A Judgement 17 December 2004 “Kordi and erkez Appeal Judgement” as corrected by Prosecutor v Dario Kordi and Mario erkez Case No IT-95-14 2-A Corrigendum to Judgement of 17 December 2004 26 January 2005 231 Case No IT-98-29-A 30 November 2006 KRAJI NIK Prosecutor v Mom ilo Krajišnik Case No IT-00-39-AR73 1 Decision on Interlocutory Appeal of Decision on Second Defence Motion for Adjournment 25 April 2005 “Krajišnik Appeal Decision on Adjournment” KRNOJELAC Prosecutor v Milorad Krnojelac Case No IT-97-25-A Judgement 17 September 2003 “Krnojelac Appeal Judgement” KRSTI Prosecutor v Radislav Krstić Case No IT-98-33-A Judgement 19 April 2004 “Krstić Appeal Judgement” KUNARAC KOVAČ AND VUKOVIĆ Prosecutor v Dragoljub Kunarac Radomir Kovač and Zoran Vuković Case Nos IT-96-23 and IT96-23 1-T Judgement 22 February 2001 “Kunarac et al Trial Judgement” Prosecutor v Dragoljub Kunarac Radomir Kovač and Zoran Vuković Case Nos IT-96-23 and IT96-23 1-A Judgement 12 June 2002 “Kunarac et al Appeal Judgement” Z KUPREŠKIĆ M KUPREŠKIĆ V KUPREŠKIĆ JOSIPOVIĆ PAPI AND ANTIĆ Prosecutor v Zoran Kupreškić Mirjan Kupreškić Vlatko Kupreškić Drago Josipovi Dragan Papi and Vladimir anti a k a “Vlado” Case No IT-95-16-T Judgement 14 January 2000 “Kupreškić et al Trial Judgement” Prosecutor v Zoran Kupreškić Mirjan Kupreškić Vlatko Kupreškić Drago Josipović and Vladimir anti Case No IT-95-16-A Appeal Judgement 23 October 2001 “Kupreškić et al Appeal Judgement” KVOČKA KOS RADIĆ ŽIGIĆ AND PRCAĆ Prosecutor v Miroslav Kvočka Milojica Kos Mla o Radić Zoran Žigić and Dragoljub Prcać Case No IT-98-30 1-T Decision on the Admission of the Record of the Interview of the Accused Kvočka 16 March 2001 Prosecutor v Miroslav Kvočka Mla o Radić Zoran Žigić and Dragoljub Prcać Case No IT-9830 1-A Judgement 28 February 2005 “Kvočka et al Appeal Judgement” MARTI Prosecutor v Milan Marti Case No IT-95-11-R61 Decision 8 March 1996 “Martić Rule 61 Decision” MILO EVI Prosecutor v Slobodan Milošević Case Nos IT-99-37-AR73 IT-01-50-AR73 and IT-01-51AR73 Decision on Prosecution Interlocutory Appeal from Refusal to Order Joinder 1 February 2002 “Milošević Appeal Decision on Refusal to Order Joinder” Prosecutor v Slobodan Milošević Case Nos IT-99-37-AR73 IT-01-50-AR73 and IT-01-51-AR73 Reasons for Decision on Prosecution Interlocutory Appeal from Refusal to Order Joinder 18 April 2002 Prosecutor v Slobodan Milo evi Case No IT-02-54-AR73 7 Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defense Counsel 1 November 2004 “Milo evi Appeal Decision on Defence Counsel Assignment” 232 Case No IT-98-29-A 30 November 2006 MILUTINOVI AINOVI AND OJDANI Prosecutor v Milan Milutinovi Nikola ainovi and Dragoljub Ojdani Case No IT-99-37AR72 Decision on Dragoljub Ojdani ’s Motion Challenging Jurisdiction – Joint Criminal Enterprise 21 May 2003 “Ojdani Appeal Decision on Joint Criminal Enterprise” MILUTINOVI AINOVI OJDANI PAVKOVI LAZAREVI DJORDEVI AND LUKI Prosecutor v Milutinovi ainovi Ojdani Pavkovi Lazarevi Djordjevi and Luki Case No IT-05-87-AR65 1 Decision on Interlocutory Appeal from Trial Chamber Decision Granting Nebojša Pavkovi ’s Provisional Release 1 November 2005 NALETILI AND MARTINOVI Prosecutor v Mladen Naletili aka “Tuta” and Vinko Martinovi aka “ tela” Case No IT-9834-A Judgement 3 May 2006 Naletili and Martinovi Appeal Judgement D NIKOLIĆ Prosecutor v Dragan Nikolić Case No IT-94-2-S Sentencing Judgement 18 December 2003 “Dragan Nikolić Sentencing Judgement” Prosecutor v Dragan Nikolić Case No IT-94-2-A Judgement on Sentencing Appeal 4 February 2005 “Dragan Nikolić Judgement on Sentencing Appeal” M NIKOLIĆ Prosecutor v Momir Nikolić Case No IT-02-60 1-A Appeal Sentencing Judgement 8 March 2006 “Momir Nikolić Judgement on Sentencing Appeal” OBRENOVIĆ Prosecutor v Dragan Obrenović Case No IT-02-60 2-S Sentencing Judgement 10 December 2003 “Obrenović Sentencing Judgement” PRLIĆ STOJIĆ PRALJAK PETKOVIĆ CORIĆ AND PUŠIĆ Prosecutor v Jadranko Prlić Bruno Stojić Slobodan Praljak Milivoj Petković Valentin Ćorić Berislav Pušić Case No It-04-74-AR73 2 Decision on Joint Defence Interlocutory Appeal Against the Trial Chamber’s Oral Decision of 8 May 2006 Relating to Cross-Examination by Defence and on Association of Defence Counsel’s Request for Leave to File an Amicus Curiae Brief 4 July 2006 “Prlić et al Decision on Interlocutory Appeal” SIMI Prosecutor v Blagoje Simić Case No IT-95-9-A Judgement 28 November 2006 “Simić Appeal Judgement” STAKI Prosecutor v Milomir Staki Case No IT-97-24-A Judgement 22 March 2006 “Staki Appeal Judgement” STANI I Prosecutor v Mi o Stani i Case No IT-04-79-AR65 1 Decision on Prosecution’s Interlocutory Appeal of Mi o Stani i ’s Provisional Release 17 October 2005 “Stani i Rule 65 Decision” STRUGAR JOKI AND KOVA EVI Prosecutor v Pavle Strugar Miodrag Joki and others Case No IT-01-42-AR72 Decision on Interlocutory Appeal 22 November 2002 “Strugar et al Jurisdiction Decision” 233 Case No IT-98-29-A 30 November 2006 TADIĆ Prosecutor v Duško Tadić a k a “Dule” Case No IT-94-1-AR-72 Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction 2 October 1995 “Tadić Jurisdiction Decision” Prosecutor v Du ko Tadi Case No IT-94-1-A Decision on Appellant’s Motion for the Extension of the Time-Limit and Admission of Additional Evidence dated 15 October 1998 filed 16 October 1998 Prosecutor v Duško Tadić Case No IT-94-1-A Judgement 15 July 1999 “Tadić Appeal Judgement” Prosecutor v Duško Tadić Case No IT-94-1-A and IT-94-1-Abis Judgement in Sentencing Appeals 26 January 2000 “Tadić Sentencing Appeal Judgement” TOLIMIR MILETI AND GVERO Prosecutor v Zdravko Tolimir Radivoje Mileti and Milan Gvero Case No IT-04-80-AR65 1 Decision on Interlocutory Appeal Against Trial Chamber’s Decisions Granting Provisional Release 19 October 2005 Prosecutor v Zdravko Tolimir Radivoje Mileti and Milan Gvero Case No IT-04-80-AR73 1 Decision on Radivoje Mileti 's Interlocutory Appeal Against the Trial Chamber's Decision on Joinder of Accused 27 January 2006 VASILJEVIĆ Prosecutor v Mitar Vasiljević Case No IT-98-32-T Judgement 29 November 2002 “Vasiljević Trial Judgement” Prosecutor v Mitar Vasiljević Case No IT-98-32-A Judgement 25 February 2004 “Vasiljević Appeal Judgement” 2 ICTR AKAYESU Prosecutor v Jean-Paul Akayesu Case No ICTR-96-4-A Judgement 1 June 2001 “Akayesu Appeal Judgement” GACUMBITSI Prosecutor v Sylvestre Gacumbitsi Case No ICTR-2001-64-A Judgement 7 July 2006 “Gacumbitsi Appeal Judgement” KAJELIJELI Prosecutor v Juvénil Kajelijeli Case No ICTR-98-44A-A Judgement and Sentence 23 May 2005 “Kajelijeli Appeal Judgement” KAMBANDA Jean Kambanda v Prosecutor Case No ICTR-97-23-A Judgement 19 October 2000 “Kambanda Appeal Judgement” KAYISHEMA AND RUZINDANA Prosecutor v Clément Kayishema and Obed Ruzindana Case No ICTR-95-1-A Judgement Reasons 1 June 2001 “Kayishema and Ruzindana Appeal Judgement” 234 Case No IT-98-29-A 30 November 2006 MUSEMA Prosecutor v Alfred Musema Case No ICTR-96-13-A Judgement 16 November 2001 “Musema Appeal Judgement” NIYITEGEKA Prosecutor v Eliézer Niyitegeka Case No ICTR-96-14-T Appeal Judgement 9 July 2004 “Niyitegeka Appeal Judgement” NTAGERURA BAGAMBIKI AND IMANISHIMWE Prosecutor v André Ntagerura Emmanuel Bagambiki and Samuel Imanishimwe Case No ICTR99-46-A Judgement 7 July 2006 “Ntagerura et al Appeal Judgement” RUTAGANDA Prosecutor v Georges Anderson Nderubunwe Rutaganda Case No ICTR-96-3-A Judgement 26 May 2003 “Rutaganda Appeal Judgement” SEMANZA Laurent Semanza v Prosecutor Case No ICTR-97-20-A Judgement 20 May 2005 “Semanza Appeal Judgement” SERUSHAGO Prosecutor v Omar Serushago Case No ICTR-98-39-A Reasons for Judgement 6 April 2000 “Serushago Sentencing Appeal Judgement” 3 Decisions Related to Crimes Committed During World War II International Military Tribunal Trial of the Major War Criminals Before the International Military Tribunal Nuremberg 14 November 1945 – 1 October 1946 Vol 22 Proceedings 27 August 1946 – 1 October 1946 Nuremberg International Military Tribunal 1948 Trial of Shigeki Motomura and 15 Others in Law R Trials War Crim Vol 13 p 138 4 Other Decisions a ICJ Legality of the Threat or Use of Nuclear Weapons Advisory Opinion of 8 July 1996 1996 ICJ 66 “Nuclear Weapons Case” b ECHR De Cubber v Belgium judgment of 26 October 1984 86 Eur Ct H R ser A Findlay v United Kingdom judgment of 25 February 1997 263 Eur Ct H R Hauschildt v Denmark judgment of 24 May 1989 154 Eur Ct H R ser A Padovani v Italy judgment of 26 February 1993 257 Eur Ct H R ser A 235 Case No IT-98-29-A 30 November 2006 Piersack v Belgium judgment of 1 October 1982 53 Eur Ct H R ser A at 14-15 Şahiner v Turkey judgment of 25 September 2001 155 Eur Ct H R 2001-IX Sainte-Marie v France judgment of 16 December 1992 235-A Eur Ct H R ser A Sramek v Austria judgment of 22 October 1984 84 Eur Ct H R ser A c Domestic cases Berger v United States 255 U S 22 1921 Brooks v Tennessee 406 U S 605 1972 Carter v United States 530 U S 255 2000 Collins v Dixie Transport Inc 543 So 2d 160 Sup Ct Miss 1989 Prosecutor v R Radulović et al Split Country Court Republic of Croatia Case No K-15 95 Verdict of 26 May 1997 R v Angelantoni 1975 31 C R n s 342 Ont CA B List of Other Legal Authorities 1 Books Edited Volumes and Collections and Journals Jean-Marie Henckaerts and Louise Doswald-Beck eds International Committee of the Red Cross Customary International Humanitarian Law Vol I Rules and Vol II Practice Cambridge Cambridge University Press 2005 “Henckaerts J-M and Doswald-Beck L Customary International Humanitarian Law Volumes I and II Cambridge 2005 ” Jean S Pictet ed Commentary Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War ICRC Geneva ICRC 1958 “ICRC Commentary GC IV ” Hugo Grotius De Jure Belli Ac Pacis Delft 1625 Hersch Lauterpacht ed Oppenheim’s International Law 7th Edition Vol 2 London Longmans Green 1952 Remarks of Michael J Matheson Deputy Legal Adviser US Department of State The Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions American University Journal of International Law and Policy Vol 2 1987 p 426 UN War Crimes Commission History of the United Nations War Crimes Commission and the Development of the Laws of War London HMSO 1948 Yves Sandoz Christoph Swinarski and Bruno Zimmernmann eds Commentary on the Additional Protocols of 8 June 1977 to the Geneva Convention of 12 August 1949 Dordrecht Martin Nijhoff Publishers 1987 “ICRC Commentary Additional Protocols ” 236 Case No IT-98-29-A 30 November 2006 2 Other Legal Authorities Declaration of Minimum Humanitarian Standards reprinted in Report of the Sub-Commission on Prevention of Discrimination and Protection of Minorities on its Forty-sixth Session Commission on Human Rights 51st Sess Provisional Agenda Item 19 at 4 U N Doc E CN 4 1995 116 1995 Draft Convention for the Protection of Civilian Populations Against New Engines of War Amsterdam 1938 Draft Rules for the Limitation of the Dangers Incurred by the Civilian Population in Time of War ICRC 1956 International Criminal Court Rules of Procedure and Evidence Letter from the Department of the Army to the Legal Adviser of the US Army Forces Deployed in the Gulf Region 11 January 1991 §8 F Report on US Practice 1997 ch 1 4 cited in Jean-Marie Henckaerts and Louise Doswald-Beck eds International Committee of the Red Cross Customary International Humanitarian Law Vol II Practice Cambridge Cambridge University Press 2005 Lieber Code of 24 April 1863 Practice Direction on Formal Requirements for Appeals from Judgement IT 201 of 7 March 2002 “Practice Direction on Appeals Requirements” Practice Direction on the Lengths of Briefs and Motions IT 184 Rev 1 5 March 2002 Provisional Verbatim Record of the 3217th Meeting at 11 U N Doc S PV 3217 25 May 1993 Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 1993 S 25704 3 May 1993 “Report of the Secretary-General ICTY ” Report of the Secretary General Pursuant to Paragraph 5 of Security Council Resolution 955 1994 S 1995 134 13 February 1995 “Report of the Secretary-General ICTR ” Rules Concerning the Control of Wireless Telegraphy in Time of War and Air Warfare Drafted by a Commission of Jurists at the Hague December 1922-February 1923 237 Case No IT-98-29-A 30 November 2006 C List of Abbreviations Acronyms and Short References According to Rule 2 B of the Rules of Procedure and Evidence the masculine shall include the feminine and the singular the plural and vice-versa ABiH Army of Bosnia and Herzegovina Additional Protocol I Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts Protocol I of 8 June 1977 1125 U N T S 3 Additional Protocol II Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of Non-International Armed Conflicts Protocol II of 8 June 1977 1125 U N T S 609 a k a Also known as AT Transcript page from hearings on appeal in the present case All transcript page numbers referred to are from the unofficial uncorrected version of the transcript unless specified otherwise Minor differences may therefore exist between the pagination therein and that of the final transcripts released to the public The Appeals Chamber accepts no responsibility for the corrections to or mistakes in these transcripts In case of doubt the video-tape of a hearing is to be revisited BiH Bosnia and Herzegovina D Designates “Defence” for the purpose of identifying exhibits Defence Counsel for Stanislav Gali Defence Appeal Brief Defence Appellant’s Brief filed 19 July 2004 Defence Final Trial Brief Defence’s Final Trial Brief filed 22 April 2003 Defence Notice of Appeal Defence Notice of Appeal filed 4 May 2004 Defence Pre-Trial Brief Pre-Trial Brief of the Defence Pursuant to Rule 65ter F filed 29 October 2001 238 Case No IT-98-29-A 30 November 2006 Defence Reply Brief Brief in Reply filed 27 September 2004 Defence Response Brief Respondent’s Brief filed 2 April 2004 ex Exhibit Fourth Geneva Convention Geneva Convention IV Relative to the Protection of Civilian Person in Time of War of 12 August 1949 75 U N T S 287 Hague Convention IV The 1907 Hague Convention IV Respecting the Laws and Customs of War on Land of 18 October 1907 187 C T S 227 1 Bevans 631 Hague Regulations Regulations Respecting the Laws and Customs of War on Land annexed to Hague Convention IV ICTR International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States Between 1 January 1994 and 31 December 1994 Indictment Prosecutor v Stanislav Gali Case No IT-98-29-T Indictment 26 March 1999 International Tribunal 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 JNA Yugoslav Peoples’ Army Army of the Socialist Federal Republic of Yugoslavia Law R Trials War Crim United Nations War Crimes Commissions selector and preparer Law Reports of Trials of War Criminals London HMSO 1949 P Designates “Prosecution” for the purpose of identifying exhibits Prosecution Office of the Prosecutor Prosecution Appeal Brief Prosecution Appeal Brief filed 2 March 2004 239 Case No IT-98-29-A 30 November 2006 Prosecution Pre-Trial Brief Prosecutor’s Pre-Trial Brief Pursuant to Rule 65ter E i Provisional filed on 20 February 2001 Prosecution Response Brief Prosecution Response Brief filed 6 September 2004 Prosecution Reply Brief Prosecution Reply Brief filed 13 April 2004 RS Republika Srpska one of the entities of BiH Rules Rules of Procedure and Evidence of the International Tribunal Security Council Resolution 935 S C Res 935 UN SCOR 49th Session U N Doc S Res 1935 1994 SFOR Multinational Stabilisation Force SFRY Former Socialist Federal Republic of Yugoslavia SFRY Criminal Code Criminal Code of the Socialist Republic of Yugoslavia adopted 28 September 1976 and entered into force on 1 July 1977 SRK Sarajevo Romanija Corps Statute Statute of the International Tribunal for the former Yugoslavia established by Security Council Resolution 827 1993 Transcript page from hearings at trial in the present case All transcript T page numbers referred to are from the unofficial uncorrected version of the transcript unless specified otherwise Minor differences may therefore exist between the pagination therein and that of the final transcripts released to the public The Appeals Chamber accepts no responsibility for the corrections to or mistakes in these transcripts In case of doubt the video-tape of a hearing is to be revisited Third Geneva Convention Geneva Convention III Relative to the Treatment of Prisoners of War of 12 August 1949 75 U N T S 135 Travaux préparatoires Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts Geneva 1974-1977 240 Case No IT-98-29-A 30 November 2006 22 May Agreement Agreement concluded under the auspices of the ICRC by the representatives of the Republic of Bosnia-Herzegovina the Serbian Democratic Party the Party of Democratic Action and the Croatian Democratic Community signed in Geneva on 22 May 1992 UN United Nations UN Commission of Experts Report Final Report of the United Nations Commission of Experts U N Doc UNDU UN Detention Unit UNPROFOR United Nations Protection Forces Vienna Convention Vienna Convention on the Law of Treaties 27 January 1980 115 S 1994 674 U N T S 331 VRS Army of the Serbian Republic 241 Case No IT-98-29-A 30 November 2006