1 Thursday, 12 November 2009
2 [Appeal Judgement]
3 [Open session]
4 [The appellant entered court]
5 --- Upon commencing at 9.02 a.m.
6 JUDGE POCAR: Good morning to everyone.
7 Mr. Registrar, would you please call the case.
8 THE REGISTRAR: Good morning, Your Honours. Good morning to
9 everyone in the courtroom. This is case number IT-98-29/1-A, the
10 Prosecutor versus Dragomir Milosevic.
11 JUDGE POCAR: Before I commence, Mr. Milosevic -- is there a
12 problem? I don't -- so we have technical problem. Can you hear me? Is
13 it okay?
14 May I ask Mr. Milosevic whether he can hear the proceedings in a
15 language he understands.
16 THE APPELLANT: [Interpretation] Thank you for asking,
17 Your Honour. Yes, I can. I can hear everything and I can follow.
18 Everything is all right.
19 JUDGE POCAR: Thank you very much.
20 May I have now the appearances of the parties. For the
22 MR. ROGERS: Yes. Good morning, Your Honours. Paul Rogers,
23 together with Manuel Eising appearing on behalf of the Prosecution, and
24 our case manager today, Mr. Colin Nawrot.
25 JUDGE POCAR: Thank you.
1 And now the Defence.
2 MR. TAPUSKOVIC: [Interpretation] Good morning, Your Honours. My
3 name is Branislav Tapuskovic. I'm here appearing as Defence counsel for
4 Dragomir Milosevic, and together with me is my co-counsel,
5 Branislava Isailovic. Thank you.
6 JUDGE POCAR: Thank you.
7 As indicated in the Scheduling Order issued on 15 October 2009
8 and pursuant to Rule 117(D) of the Rules of Procedure and Evidence of the
9 Tribunal, today the Appeals Chamber will deliver its judgement in the
10 case of the Prosecutor versus Dragomir Milosevic. Following the practice
11 of the Tribunal, I will not read out the text of the judgement, except
12 for the disposition. Instead, after recalling the main issues raised on
13 appeal, I will summarise the findings of the Appeals Chamber. I should
14 emphasise that the following summary is not an integral part of the
15 judgement. The only authoritative account of the Appeals Chamber's
16 conclusions and the related reasoning is to be found in the written
17 judgement, copies of which shall be made available to the parties at the
18 end of this hearing.
19 The events giving rise to these appeals took place in the city of
20 Sarajevo, Bosnia and Herzegovina, between August 1994 and November 1995.
21 During the relevant period, Dragomir Milosevic held the position of
22 commander of the Sarajevo-Romanija Corps. The Trial Chamber found that
23 the SRK
24 continuously sniping and shelling the area of Sarajevo, resulting in the
25 killing and serious injury of many civilians. It thus found Milosevic
1 guilty pursuant to Article 7(1) of the Statute for planning and ordering
2 the crimes of terror, as a violation of the laws or customs of war,
3 Count 1; murder and inhumane acts, as crimes against humanity, committed
4 through sniping, Counts 2 and 3; and shelling, Counts 5 and 6. As a
5 consequence of the conviction entered under Count 1, the Trial Chamber
6 dismissed the charges of unlawful attacks against civilians under
7 Counts 4 and 7, as impermissibly cumulative, on the ground that the
8 elements of the crime of unlawful attack against civilians are fully
9 encompassed by the crime of terror. The Trial Chamber imposed a single
10 sentence of 33 years of imprisonment.
11 Both parties appealed the trial judgement. Milosevic sets forth
12 12 grounds of appeal against the trial judgement. He requests the
13 Appeals Chamber to acquit him on all counts. The Prosecution puts forth
14 a sole ground of appeal against the sentence and requests the
15 Appeals Chamber to increase the sentence imposed on Milosevic to life
16 imprisonment. I will start with the grounds of appeal raised by
17 Milosevic, followed by the Prosecution's appeal.
18 Under the first part of his first ground of appeal, Milosevic
19 argues that the Trial Chamber erroneously established that all the
20 required elements of the crime of terror have been met. Regarding the
21 actus reus
22 misinterpreted the Galic appeal judgement by stating that "actual
23 infliction of death or serious harm to body or health is a required
24 element of the crime of terror," and thus committed an error of law.
25 Causing death or serious injury to body or health represents only one of
1 the possible modes of commission of the crime of terror, and thus is not
2 an element of the offence per se. What is required, however, in order
3 for the offence to fall under the jurisdiction of this Tribunal, is that
4 the victims suffered grave consequences resulting from the acts or
5 threats of violence; such grave consequences include, but are not limited
6 to, death or serious injury to body or health.
7 For reasons explained in the judgement, the Appeals Chamber
8 further rejects the Prosecution's submission that the actus reus
9 crime of terror is comprised of acts capable of spreading terror. That
10 said, in view of the Trial Chamber's findings in the present case that
11 all the incidents imputed to the SRK
12 civilians and thus caused death or serious injury to body or health of
13 civilians, the required threshold of gravity based on those incidents has
14 been met. Moreover, the Trial Chamber established that the incidents had
15 a strong psychological impact on the population of Sarajevo, which, in
16 the circumstances of the case, also satisfies the threshold of gravity
17 required for the crime to fall under the Tribunal's jurisdiction.
18 Consequently, the Appeals Chamber finds that the Trial Chamber's
19 legal error regarding the actus reus
20 impact on its analysis of the evidence of the case and eventually on the
21 findings of guilt. Nonetheless, in light of the Trial Chamber's legal
22 error, the Appeals Chamber finds it necessary to provide guidance with
23 respect to the applicable law on cumulative convictions in relation to
24 the crime of terror and unlawful attacks against civilians. It finds
25 that contrary to the Trial Chamber's conclusion, each of the offences in
1 question has an element requiring proof of a fact not required by the
2 other, thus allowing cumulative convictions to be entered. However,
3 considering that the matter of cumulative convictions has not been
4 appealed by the Prosecution, the Appeals Chamber has not considered the
5 matter any further.
6 The Appeals Chamber rejects Milosevic's argument that the
7 Trial Chamber could not take into account evidence of the actual terror
8 experienced by the civilian population when establishing the mens rea of
9 the crime. It finds that both the actual infliction of terror and the
10 indiscriminate nature of the attacks were reasonable factors for the
11 Trial Chamber to consider in determining Milosevic's specific intent.
12 The Appeals Chamber recalls in this regard that while the actual
13 terrorisation of the civilian population is not an element of the crime,
14 evidence of such terrorisation may contribute to establishing other
15 elements of the crime of terror. As regards the indicia mentioned in the
16 Galic appeal judgement, the Appeals Chamber emphasises that they do not
17 represent an exhaustive list of mandatory considerations but an
18 indication of some factors that may be taken into account according to
19 the circumstances of the case. The Appeals Chamber finds that Milosevic
20 has failed to demonstrate any discernible error in the Trial Chamber's
21 reasoning in this regard. This subground is therefore dismissed,
22 Judge Liu dissenting on the question of the Tribunal's jurisdiction over
23 the crime of terror and on the elements of the offence.
24 In the second prong of his first ground of appeal, Milosevic
25 alleges that the Trial Chamber failed to establish beyond reasonable
1 doubt that the attacks carried out by the SRK were directed against
2 civilians or that civilians were the victims of those attacks. At the
3 outset, the Appeals Chamber finds no error in the definition of civilians
4 and of civilian population expounded by the Trial Chamber and rejects
5 Milosevic's argument that the Trial Chamber presumed the civilian status
6 of the victims. As regards Milosevic's submission that the Trial Chamber
7 erred in failing to consider entire areas of Sarajevo held by the Army of
8 Bosnia and Herzegovina as military zones, the Appeals Chamber emphasises
9 that there is no requirement that particular areas, or zones, be
10 designated as civilian or military in nature. Rather, a case-by-case
11 distinction is to be made between the civilian population and combatants,
12 or between civilian and military objectives, targeted in each attack.
13 Accordingly, Milosevic's arguments in this regard are dismissed.
14 The Appeals Chamber further rejects Milosevic's allegation that
15 the Trial Chamber did not take into consideration the factors relevant to
16 its assessment of whether the SRK
17 civilian population. It further dismisses without detailed consideration
18 Milosevic's unsupported challenges with respect to the civilian status of
19 the victims of a number of shelling and sniping incidents. For reasons
20 spelled out in the judgement, Milosevic's first ground of appeal is
21 dismissed in its entirety.
22 Under his second ground of appeal, Milosevic argues that the
23 Trial Chamber erroneously established certain facts by relying on
24 evidence it had not admitted during the proceedings. The Appeals Chamber
25 dismisses Milosevic's arguments concerning the Trial Chamber's reliance
1 upon a NATO weather report and his unsubstantiated submission that the
2 psychological state of the civilian population in Sarajevo could not have
3 been established without having recourse to an expert in psychology.
4 Milosevic's arguments concerning the Siege of Sarajevo are addressed
5 under his fourth ground of appeal. Milosevic's second ground of appeal
6 is therefore dismissed.
7 Under his third ground of appeal, Milosevic contends that the
8 Trial Chamber failed to consider the evidence as a whole, and in
9 particular that it ignored the evidence showing the military activity of
10 the ABiH. The Appeals Chamber finds that Milosevic fails to meet the
11 standard of review on appeal, and therefore dismisses this ground of
13 Under his fourth ground of appeal, Milosevic challenges the
14 Trial Chamber's findings regarding the civilian status of the trams in
16 evidence showing that trams were not used for transportation of troops or
17 military equipment. With the exception of the sniping incident of
18 27 February 1995
19 military personnel present on the vehicles or in their vicinity at the
20 time the incidents took place. With regard to the sniping incident of
21 27 February 1995
22 the presence of one soldier on the tram. The Appeals Chamber finds,
23 however, that Milosevic's assertion that the presence of one soldier
24 converted the tram into a military target due to the fact that it was
25 used for transportation of the military is untenable.
1 With respect to Milosevic's arguments regarding the siege, the
2 Appeals Chamber considers that the Trial Chamber only used the term
3 "siege" as a means of describing the factual situation before it,
4 referring to the conditions in which the population of Sarajevo was
5 trapped throughout the indictment period, and did not ascribe to it any
6 legal qualification. Accordingly, the Appeals Chamber finds that
7 Milosevic fails to demonstrate that the Trial Chamber committed any error
8 of law or of fact. The remainder of Milosevic's arguments concerning
9 this issue are also dismissed.
10 Milosevic's submissions regarding his absence from Sarajevo
11 discussed under his 12th ground of appeal. His fourth ground of appeal
12 is dismissed in all other respects.
13 Since Milosevic's fifth ground of appeal relates to the sentence
14 imposed by the Trial Chamber, it will be addressed at the end of this
15 summary in the part relevant to sentencing.
16 Under his sixth ground of appeal, Milosevic argues that the
17 Trial Chamber erred in fact in finding that Vojnicko Polje,
18 Alipasino Polje, Dobrinja, Sedrenik, Hrasnica, and Marin Dvor were
19 civilian areas within the city of Sarajevo
20 concluded that despite the somewhat confusing language used by the
21 Trial Chamber, it correctly engaged in a case-by-case analysis of the
22 targets and modalities of the attacks and not that of status of zones.
23 The Appeals Chamber is satisfied that the Trial Chamber correctly
24 established that the population of these neighbourhoods of Sarajevo
25 civilian status at the time of the attacks targeting it. Consequently,
1 Milosevic's sixth ground of appeal is dismissed in its entirety.
2 Under his seventh ground of appeal, Milosevic alleges that the
3 Trial Chamber erroneously found that SRK members were behind specific
4 sniper fire. The Appeals Chamber finds that concerning the sniping of
5 Jasmina Tabakovic, Sanela Dedovic, Dervisa Selmanovic, Tarik Zunic, and
6 Adnan Kasapovic, Milosevic fails to show any error in the Trial Chamber's
7 reliance on the evidence on the record. Milosevic also fails to show any
8 error in the Trial Chamber's findings that trams were deliberately
9 targeted by SRK
10 Dzenana Sokolovic, the Appeals Chamber finds that the Trial Chamber fully
11 considered and weighed all the relevant evidence and that Milosevic has
12 failed to demonstrate any discernible error in its reasoning.
13 Milosevic's seventh ground of appeal is therefore dismissed in its
15 Under his eighth ground of appeal, Milosevic challenges the
16 Trial Chamber's finding that the SRK
17 incidents. Concerning the shelling of the Livanjska Street on
18 8 November 1994
19 that the Trial Chamber's conclusions were erroneous.
20 As to the shelling of the Bascarsija flea market on
21 22nd December 1994
22 direction of the fire, the evidence clearly shows that both shells that
23 exploded on 22nd December 1994 at the flea market were fired from
24 south-east. However, concerning the origin of the fire, the record
25 indicates that the testimony of Witness W-12 was the only evidence
1 identifying it with precision as being Vidikovac. However, Witness W-12
2 based his conclusion solely on the sound of one shell being fired.
3 Considering the location of the ABiH and SRK positions, both in the
4 direction from which the shell was fired, the Appeals Chamber is of the
5 view that an analysis of the charge, as explained in the Galic appeal
6 judgement, could have determined the position where the shell was fired
7 from with greater precision. The Trial Chamber failed to address the
8 deficiencies in the relevant evidence and to articulate its reasons for
9 dismissing other possible conclusions with respect to the origin of fire.
10 The Appeals Chamber therefore finds that whereas the evidence on the
11 record could lead a reasonable Trial Chamber to conclude that it was most
12 likely that the shells that hit the flea market on 22nd December 1994
13 were fired from the SRK
14 such a conclusion beyond reasonable doubt.
15 In light of the above, the Appeals Chamber grants Milosevic's
16 eighth ground of appeal in part and overturns his conviction for the
17 shelling incident of 22nd December 1994. The remainder of this ground of
18 appeal is dismissed.
19 Under his 9th, 10th, and 11th ground of appeal, Milosevic
20 challenges various findings made by the Trial Chamber in relation to the
21 possession and use of the so-called modified air bombs.
22 The Appeals Chamber finds that Milosevic's general claim that
23 ABiH possessed modified air bombs simply reiterates his arguments
24 rejected by the Trial Chamber without showing any specific error in its
25 conclusions. Moreover, the Appeals Chamber notes that the Trial Chamber
1 considered the allegation that ABiH used this type of weapons during the
2 conflict in examining each of the individual incidents. Consequently,
3 even if Milosevic's general allegation regarding the ABiH possession of
4 the air bombs during the indictment period were shown to be true, it
5 would have been without bearing on the conclusions with respect to their
6 use in the specific incidents which he was convicted of.
7 Concerning the Trial Chamber's findings with regard to the
8 shelling incident of 28 June 1995
9 reasonable trier of fact could have found on the basis of the evidence
10 presented before the Trial Chamber that the TV building was hit by a
11 modified air bomb launched from the SRK-held territory. Similarly, in
12 relation to the use of aerial bombs in explosions between 7 April and
13 23 August 1995
14 of the Trial Chamber were erroneous. In light of the above, Milosevic's
15 9th, 10th, and 11th grounds of appeal are dismissed.
16 Under his 12th ground of appeal, Milosevic challenges the
17 Trial Chamber's finding that he ordered the attacks against civilians.
18 The Appeals Chamber notes that the Trial Chamber did not analyse whether
19 Milosevic ordered every sniping or shelling incident, but rather
20 concluded that those incidents could only take place if ordered by him in
21 the framework of the campaign of terror.
22 At the outset, the Appeals Chamber notes that the Trial Chamber
23 held in its discussion of the widespread and systematic attack "a
24 campaign is a military strategy; it is not an ingredient of any of the
25 charges in the indictment, be that terror, murder, or inhumane acts."
1 The Appeals Chamber notes, however, that in other parts of the
2 trial judgement, the Trial Chamber appears to hold Milosevic responsible
3 for planning and ordering a criminal campaign. The Appeals Chamber
4 understands these references as illustrating that the crimes at stake
5 formed a pattern comprised by the SRK
6 Therefore, the expression "campaign" in the appeal judgement shall be
7 understood as a descriptive term illustrating that the attacks against
8 the civilian population in Sarajevo
9 were carried out as a pattern forming part of the military strategy in
11 The Appeals Chamber notes that the Trial Chamber did not rely on
12 any evidence that would identify a specific order issued by Milosevic
13 with respect to the campaign of shelling and sniping in Sarajevo as such.
14 Rather, it relied on the nature of the campaign carried out in the
15 context of a tight command to conclude that it could only "have been
16 carried out on Milosevic's instructions and orders." However, the
17 Appeals Chamber is not satisfied that the Trial Chamber established
18 beyond reasonable doubt the existence of a positive act required for the
19 actus reus
20 perform a campaign of sniping and shelling of civilian population in
22 The Appeals Chamber further notes that Milosevic was convicted
23 for both planning and ordering the campaign of shelling and sniping of
24 civilians in Sarajevo
25 term in command. With respect to the actus reus of planning, the
1 Trial Chamber held that, although Milosevic did not devise a strategy for
3 VRS Main Staff, he was able to implement the greater strategy in a manner
4 he saw fit. It is unclear from these findings whether Milosevic was
5 found to have participated in the design of the military strategy
6 concerning the ongoing campaign as such or whether he planned each and
7 every incident for which he was held responsible by the Trial Chamber.
8 The Appeals Chamber further finds that it is unclear what specific
9 evidence was relied upon by the Trial Chamber to come to these
10 conclusions. In light of these uncertainties, the Appeals Chamber finds
11 that Milosevic's responsibility for planning the campaign of sniping and
12 shelling of civilians in Sarajevo
13 reasonable doubt.
14 The Appeals Chamber emphasises that the findings above pertain
15 strictly to Milosevic's individual criminal responsibility. These
16 findings do not affect the conclusions of the Trial Chamber as well as
17 those of the Galic Trial and Appeals Chambers that a campaign of shelling
18 and sniping the civilian population in Sarajevo took place during the
19 relevant period.
20 The Appeals Chamber now turns to consider Milosevic's
21 responsibility under Counts 1, 5, and 6 concerning the shelling
22 incidents. On the basis of the evidence relied upon by the
23 Trial Chamber, coupled with the established fact that Milosevic was
24 directly involved in the use and deployment of modified air bombs and
25 issued orders regarding their use from as early as August 1994, the
1 Appeals Chamber is of the opinion that it was not unreasonable for the
2 Trial Chamber to conclude beyond reasonable doubt that all the shelling
3 involving modified air bombs and mortars fired by the SRK in Sarajevo
4 during the indictment period could only occur pursuant to Milosevic's
5 orders. However, the Appeals Chamber notes that the Trial Chamber's
6 conclusions that Milosevic planned the shelling incidents are based on
7 essentially the same set of facts. In the circumstances of this case,
8 the Appeals Chamber proprio motu finds that Milosevic's responsibility
9 for ordering the shelling incidents fully encompasses his criminal
10 conduct and thus does not warrant a conviction for planning the same
12 Considering Milosevic's responsibility under Counts 1, 2, and 3,
13 which concern the sniping incidents, the Appeals Chamber finds that the
14 Trial Chamber abused its discretion by taking into account instances
15 where Milosevic acted towards preventing the sniping as proof of him
16 planning and ordering the sniping of civilians. Second, the
17 Trial Chamber's reference to "an order for combat readiness and to draw
18 up a firing plan onto the Old Town
19 and ordering the sniping is not accompanied by any mention of an exhibit
20 or witness testimony, and the Appeals Chamber is unable to discern what
21 exactly the Trial Chamber was citing to. Furthermore, the
22 Appeals Chamber finds that the evidence cited by the Trial Chamber in
23 supporting of its finding that Milosevic generally controlled the sniping
24 activity and training does not allow for a conclusion that the inference
25 by the trial judgement that Milosevic ordered all sniping incidents
1 attributed to the SRK
2 However, the Appeals Chamber notes that its findings above do not
3 exclude Milosevic being held responsible for the crimes committed through
4 sniping under Article 7(3) of the Statute, considering that this mode of
5 liability was pleaded in the indictment and discussed in the trial
6 judgement. The Appeals Chamber is satisfied that although it did not
7 convict Milosevic under Article 7(3) of the Statute, the Trial Chamber
8 made the findings necessary for the establishment of his command
9 responsibility for the sniping incidents. Having applied the correct
10 legal framework to the conclusions of the Trial Chamber, the
11 Appeals Chamber is satisfied that Milosevic's responsibility under
12 Article 7(3) of the Statute for having failed to prevent and punish the
13 said crimes committed by his subordinates is established beyond
14 reasonable doubt.
15 The Appeals Chamber now turns to consider Milosevic's arguments
16 raised under his fourth ground of appeal, claiming that he cannot be held
17 responsible for planning and ordering the incidents that took place
18 between 6 August and 10 September 1995, while he was receiving medical
19 treatment in Belgrade
20 22nd August 1995
21 The Appeals Chamber recalls that while Milosevic was hospitalised
22 in Belgrade
23 Chief of Staff, Cedomir Sladoje, who issued orders in lieu of the
24 commander. Therefore, the Appeals Chamber finds that even though
25 Milosevic formally preserved his rank and duties, the position of
1 authority on the ground belonged to the stand-in commander, albeit
2 temporarily. The Prosecution suggests that it can be inferred from the
3 totality of the evidence that prior to his departure Milosevic instructed
4 Sladoje to continue the campaign in his absence. However, the
5 Appeals Chamber observes that this argument was not part of the
6 Prosecution's case at trial and was thus not considered by the
7 Trial Chamber. In any case, the Appeals Chamber is not convinced that
8 such an inference would be the only reasonable one from the evidence
9 pointed to by the Prosecution.
10 The Appeals Chamber notes that the Trial Chamber did not
11 establish the existence of the prior positive act required for the actus
13 The Appeals Chamber further finds that it was unreasonable for the
14 Trial Chamber to infer that Milosevic ordered these two shelling
15 incidents on the basis that the incidents in question were similar to the
16 ones that took place in his presence, and thus were part of the overall
17 plan and general orders of Milosevic. Consequently, the Appeals Chamber
18 quashes the Trial Chamber's findings in this regard and acquits Milosevic
19 of the crimes related to the shelling of the BITAS building on the
20 22nd August 1995
21 In light of the foregoing, the Appeals Chamber grants Milosevic's
22 12th and 4th grounds of appeal in part, and (i) upholds Milosevic's
23 convictions for ordering the shelling of the civilian population in
25 Bascarsija flea market on 22nd December 1994, of the BITAS building on
1 22 August 1995
2 his conviction for planning the same crimes; and (iii) replaces
3 Milosevic's convictions for planning and ordering the sniping of the
4 civilian population by respective convictions under Article 7(3) of the
6 As shown in the reasoning of the judgement, in light of the
7 acquittals with respect to the shelling of the BITAS building on
8 22nd August 1995
9 Appeals Chamber did not need to address Milosevic's challenges in
10 relation to the victims thereof and the SRK participation therein. In
11 this sense, the Trial Chamber's relevant findings remain undisturbed on
13 I now turn to the grounds of appeal concerning the sentence
14 imposed by the Trial Chamber.
15 With respect to Milosevic's fifth ground of appeal, the
16 Appeals Chamber finds that read in its proper context, the
17 Trial Chamber's reference to Milosevic's planning and ordering of gross
18 and systematic violations of humanitarian law through his orders simply
19 exemplifies Milosevic's abuse of position, which was the specific
20 aggravating circumstance correctly considered by the Trial Chamber. The
21 Appeals Chamber thus finds, Judge Liu dissenting, that the Trial Chamber
22 correctly took this factor into consideration in determining the sentence
23 to be imposed. Similarly, Milosevic fails to show that the Trial Chamber
24 erred with respect to the other factors it considered in aggravation.
25 For the foregoing reasons, the Appeals Chamber dismisses Milosevic's
1 fifth ground of appeal.
2 However, the Appeals Chamber proprio motu finds that the
3 Trial Chamber counted certain factors twice when considering the gravity
4 of the crimes and the aggravating circumstances. In the
5 Appeals Chamber's view, the following factors were impermissibly counted
6 twice in the relevant sentencing considerations: Abuse of position, the
7 indiscriminate shelling of the civilians, and the terrorising effect of
8 the shelling and sniping on the civilian population. Nonetheless, the
9 Appeals Chamber finds that even when properly taken into account only
10 once, these factors still warrant a sentence comparable to that imposed
11 by the Trial Chamber.
12 Under its sole ground of appeal, the Prosecution submits that the
13 Trial Chamber erred in law in imposing a sentence of 33 years'
14 imprisonment, which it argues was manifestly inadequate in the
15 circumstances. The Prosecution submits that the only sentence which
16 accurately reflects Milosevic's responsibility is one of life
18 Concerning the circumstances considered in mitigation, the
19 Appeals Chamber finds that the Prosecution does not identify any
20 discernible error in the exercise of the Trial Chamber's sentencing
21 discretion beyond disagreeing with its determination of the mitigating
22 factors. Although another Trial Chamber could have reasonably decided
23 not to consider the above-mentioned factors as mitigating Milosevic's
24 guilt, the Appeals Chamber finds that the Trial Chamber acted within the
25 scope of its discretion in doing so.
1 With regard to the gravity of the crimes for which Milosevic was
2 convicted, including his role in the crimes, a reading of the relevant
3 section of the trial judgement clearly shows the Trial Chamber took into
4 account all of the findings identified by the Prosecution. As to the
5 comparison with the sentence imposed of Stanislav Galic on appeal, the
6 Appeals Chamber does not discount the assistance that may be drawn from
7 previous decisions. However, such assistance is often limited, as
8 differences between cases are often more significant than similarities,
9 and different mitigating and aggravating circumstances might dictate
10 different results. While another reasonable trier of fact might have
11 convicted Milosevic to a higher sentence, the Appeals Chamber does not
12 consider that the sentence pronounced was unreasonable or plainly unjust
13 so as to require the Appeals Chamber's intervention.
14 For the foregoing reasons, the Appeals Chamber dismisses the
15 Prosecution's appeal in its entirety.
16 This concludes the Appeals Chamber's examination of the grounds
17 of appeal raised by the parties, and I will now move to the analysis of
18 how the Appeals Chamber's findings affect the sentence imposed by the
19 Trial Chamber.
20 The Appeals Chamber first finds that the overturning of
21 Milosevic's convictions for planning the crimes of terror, murder, and
22 inhumane acts does not warrant any reduction of the sentence, taking into
23 account Milosevic's criminal conduct and the seriousness of the crimes
24 that remain undisturbed. Similarly, Milosevic's convictions under
25 Article 7(3), replacing those under Article 7(1) for the crimes committed
1 through sniping do not in the circumstances of the present case diminish
2 his active and central role in the commission of the crimes. Indeed,
3 Milosevic did more than merely tolerate the crimes as a commander. In
4 maintaining and intensifying the campaign directed at the civilian
5 population in Sarajevo
6 additional encouragement to his subordinates to commit the crimes against
7 the civilians. Therefore, no reduction of sentence is warranted on this
8 basis either.
9 Concerning the specific incidents, the Appeals Chamber has
10 reversed Milosevic's convictions for the shelling of the Bascarsija flea
11 market on 22nd December 1994, the BITAS building on 22nd August 1995, and
12 that of the Markale Market on 28 August 1995. Although these findings do
13 not change the fact that the entire population of Sarajevo was the victim
14 of the crime of terror committed under Milosevic's command, they do
15 involve fewer victims of the crimes of murder and other inhumane acts
16 imputable to Milosevic under Counts 5 and 6 of the indictment. The
17 Appeals Chamber thus finds that this reversal has an impact, although
18 limited, on Milosevic's overall culpability.
19 I shall now read in full the disposition of the appeal judgement.
20 Mr. Milosevic, would you please rise.
21 [The appellant stands]
22 JUDGE POCAR: This is the disposition.
23 For the foregoing reasons, the Appeals Chamber, pursuant to
24 Article 25 of the Statute and Rules 117 and 118 of the Rules; noting the
25 respective written submissions of the parties and the arguments they
1 presented at the hearing of 21st July 2009
2 allows in part Milosevic's fourth ground of appeal, insofar as it
3 concerns the crimes committed during his absence from Sarajevo
4 aside the finding that Milosevic was responsible for planning and
5 ordering the shelling of the BITAS building on 22nd August 1995 and of
6 the Markale Market on 28 August 1995
7 in part; allows in part Milosevic's eighth ground of appeal, and sets
8 aside the finding that Milosevic was responsible for the planning and
9 ordering the shelling of the Bascarsija flea market on 22nd December
10 1994, Counts 1 in part, 5 in part, and 6 in part; allows in part
11 Milosevic's 12th ground of appeal, sets aside Milosevic's convictions for
12 planning and ordering the crimes under Count 1, in the part concerning
13 the sniping of civilian population and under Counts 2 and 3, and finds
14 Milosevic responsible for those crimes under Article 7(3) of the Statute;
15 sets aside Milosevic's convictions for planning the crimes under Count 1,
16 in the part concerning the shelling of the civilian population, and under
17 Counts 5 and 6; dismisses Milosevic's appeal in all other respects;
18 affirms the remainder of Milosevic's convictions under Count 1, Judge Liu
19 dissenting, 5 and 6; dismisses the Prosecution's appeal; reduces
20 Milosevic's sentence to 29 years of imprisonment, subject to credit being
21 given under Rule 101(C) of the Rules; orders in accordance with
22 Rule 103(C) and Rule 107 of the Rules that Milosevic is to remain in the
23 custody of the Tribunal pending the finalisation of arrangements for his
24 transfer to the state where his sentence will be served.
25 Judge Liu appends a partly dissenting opinion.
1 Mr. Milosevic, you may be seated.
2 [The appellant sits down]
3 JUDGE POCAR: I will now request the Registrar to please deliver
4 copies of the judgement to the parties.
5 Thank you.
6 This concludes the appellate proceedings in this case. The
7 Appeals Chamber will now rise.
8 --- Whereupon the hearing adjourned at 9.50 a.m.