041217IT

Page 662

1 Friday, 17 December 2004

2 [Appeal Judgement]

3 [Open session]

4 [The appellant entered court]

5 [The appellant Cerkez not present in court]

6 --- Upon commencing at 12.49 p.m.

7 JUDGE SCHOMBURG: Good afternoon, everybody. May I ask Madam

8 Registrar please to call the case.

9 THE REGISTRAR: Good afternoon, Your Honours. Case number

10 IT-95-14/2-A, the Prosecutor versus Dario Kordic and Mario Cerkez.

11 JUDGE SCHOMBURG: Thank you. May I have the appearances, please.

12 First the Prosecution.

13 MR. FARRELL: Counsel appearing for the Prosecution, Your Honours,

14 is Norman Farrell, then Ms. Helen Brady, Ms. Marie-Ursula Kind, Ms.

15 Michelle Jarvis. Also appearing with us in Court are our case manger

16 Lourdes Galicia, and the senior trial attorneys from the trial,

17 Mr. Geoffrey Nice and Mr. Ken Scott. Thank you, Your Honour.

18 JUDGE SCHOMBURG: Thank you.

19 And for the Defence, please. The Defence for Mr. Kordic, first.

20 MR. NAUMOVSKI: [Interpretation] Thank you, Your Honour. Good

21 afternoon. The Defence of Mr. Kordic in the person of my colleagues from

22 the United States, Stephen Sayers and Turner Smith. My name is Mitko

23 Naumovski, a lawyer from Zagreb. Thank you.

24 MR. KOVACIC: Good afternoon, Your Honours. For Cerkez Defence,

25 Mr. Goran Mikulicic, my co-counsel, and myself Bozidar Kovacic, attorney

Page 663

1 from Croatia. Thank you.

2 JUDGE SCHOMBURG: Thank you. I note your client in writing has

3 waived his right to be present when the summary of the judgement is to be

4 read out; correct?

5 MR. KOVACIC: Yes, Your Honour. He waived his right.

6 JUDGE SCHOMBURG: Thank you. May I finally ask Mr. Kordic: Can

7 you follow the proceedings in a language you understand?

8 THE APPELLANT KORDIC: [Interpretation] Thank you for asking, Your

9 Honour. Yes. Good afternoon. I can follow the proceedings in a language

10 I understand.

11 JUDGE SCHOMBURG: Thank you. You may be seated again.

12 Before reading out the summary of the judgement, I should like

13 first to thank everybody having assisted in the preparation, translation,

14 editing and printing of this judgement.

15 The Appeals Chamber of this International Tribunal has come

16 together today to deliver its judgement on appeal in the case of

17 Prosecutor versus Dario Kordic and Mario Cerkez.

18 The following is a summary of the Appeals Chamber's judgement

19 which is based on the final deliberations of 2 December 2004. It will be

20 made available in English, French, and B/C/S at the end of the session, in

21 particular to the accused in a language he understands. Copies of the

22 judgement will be made available to the parties towards the end of this

23 session. It has to be emphasised that the only authoritative account of

24 the Appeals conclusion is to be found in the English version of the

25 written judgement.

Page 664

1 The events giving rise to this appeal took place during the

2 conflict between the Croatian Defence Council, the HVO, and the Bosnian

3 Muslim army in Central Bosnia from 1992 until 1993, in particular in the

4 Lasva Valley region.

5 This region, situated at the heart of Central Bosnia, consists of

6 the municipalities of Vitez, Novi Travnik and Busovaca. The municipality

7 of Kiseljak lies to the south of Lasva Valley. The military significance

8 of the area lay in its position in the middle of Bosnia and Herzegovina

9 and the fact that it contained a number of armament factories. It is a

10 mountainous area with important roads running along the valleys going from

11 Herzegovina to Eastern Bosnia and from Sarajevo to the north. Novi

12 Travnik and Kiseljak, about 30 kilometres apart and connected by a road,

13 marks the area at the centre of the events in this case. The village of

14 Ahmici, in which the most serious massacre in this case was undisputedly

15 committed in mid-April 1993, is situated along this road.

16 Let me now turn to the accused. Dario Kordic was born on 14

17 December 1960 in Busovaca in Bosnia and Herzegovina. He is married and

18 has three children. He is a former journalist, and he was gainfully

19 employed at the Vatrostalna company in Busovaca from 1985 onwards. In

20 1991, Kordic became the president of the Croatian Democratic Union of

21 Bosnia and Herzegovina in the municipality of Busovaca. In the same year,

22 he became the vice-president of the Presidency of the Croatian Community

23 of Herceg-Bosna after its foundation on 18 November 1991. When the

24 Croatian Community of Herceg-Bosna turned itself into the Croatian

25 Republic of Herceg-Bosna in August 1993, Kordic continued to serve as

Page 665

1 vice-president.

2 Mario Cerkez was born on 27 March 1959 in Vitez in Bosnia and

3 Herzegovina. He's married and also has three children. Before the

4 outbreak of the armed conflict in the Lasva Valley, he was employed in the

5 Slobodan Princip Seljo factory in Vitez. Cerkez was one of the founders

6 of the HVO in Vitez, his first duty being assistant commander of the Vitez

7 staff, followed by commander of the Vitez Brigade. When the Vitez and

8 Novi Travnik Brigades were united, Cerkez became assistant commander of

9 that brigade. Finally, in March 1993, Cerkez became the commander of the

10 Viteska Brigade.

11 The Trial Chamber convicted Kordic for planning, instigating and

12 ordering, including persecutions, unlawful attacks on civilians and

13 civilian objects, murder, inhumane acts, imprisonment, wanton destruction

14 not justified by military necessity, plunder, and destruction or wilful

15 damage to institutions dedicated to religion or education. These crimes

16 were committed in the municipalities of Travnik, Vitez, Busovaca, and

17 Kiseljak. The Trial Chamber found that Kordic played an instrumental part

18 in ordering the attack on Ahmici in April 1993, an attack in which more

19 than 100 Bosnian Muslim civilians were massacred. The Trial Chamber

20 sentenced Kordic to 25 years of imprisonment.

21 For crimes committed in Vitez, Stari Vitez, and Veceriska, Cerkez

22 was convicted for committing persecutions and pursuant to both Article

23 7(1) and 7(3) of the Statute for unlawful attacks on civilians and

24 civilian objects, murder, inhumane acts, imprisonment, taking civilians as

25 hostages, wanton destruction not justified by military necessity, plunder,

Page 666

1 and destruction or wilful damage to institutions dedicated to religion or

2 education. For these crimes, the Trial Chamber imposed a sentence of 15

3 years of imprisonment. The Trial Chamber acquitted Cerkez, however, of

4 the charges in respect to the crimes allegedly committed by him in Ahmici.

5 The appeals of Kordic and Cerkez are directed against all

6 convictions. Kordic mainly submits that he was denied equality of arms

7 and did not receive a fair trial; that the Trial Chamber erred in relying

8 on uncorroborated hearsay evidence; that the Trial Chamber erred in

9 finding that the Muslim-Croat conflict in Central Bosnia was a unilateral

10 Bosnian Croat campaign of persecution; that he did not have responsibility

11 for the events in Ahmici and elsewhere; and that no armed conflict existed

12 prior to mid-April 1993; and finally, that the sentence was excessive.

13 Cerkez mainly submits that no international armed conflict existed

14 at the relevant time; that the Trial Chamber erroneously convicted him on

15 the basis of Article 7(3) of the Statute; that he did not receive a fair

16 trial as the Trial Chamber erred in the application of material law as a

17 result of erroneous factual findings; and also he claims that the sentence

18 was excessive.

19 Finally, the Prosecution appeals Cerkez's acquittal for crimes in

20 Ahmici and the sentences of both Kordic and Cerkez as being too lenient.

21 During the appellate proceedings, various grounds of appeal were

22 withdrawn, not the least due to the further developed jurisprudence of the

23 International Tribunal since February 2001. In relation to some of the

24 locations mentioned in the charges, the Prosecution has conceded that the

25 trial judgement does not contain the necessary factual findings.

Page 667

12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.

Page 668

1 Let me pause for a moment for the following more general remarks:

2 The fact is that this International Tribunal has never had and

3 will never have the opportunity to hear cases against all the persons

4 allegedly being among the most responsible for the events in Lasva Valley

5 in one procedure. Chambers of this International Tribunal can only hear a

6 case regarding a person against whom an indictment has been filed and

7 confirmed and who is present in The Hague. The fact that, seen from an

8 objective point of view, a case against an alleged serious offender is and

9 will not be heard before this International Tribunal may be due to several

10 reasons, among them primarily that the Prosecution had not enough evidence

11 and/or that there was insufficient cooperation between the International

12 Tribunal and a state, either in the past or still today. As a result,

13 each Chamber can only carefully analyse the question of individual

14 criminal responsibility for the crimes committed in Lasva Valley in

15 relation to each of the accused brought before it.

16 It also has to be emphasised that each Bench of the International

17 Tribunal decides a case solely on the evidence before it. This evidence,

18 and consequently the disposition, may vary from case to case, as it is

19 mainly the parties who bring evidence in this primarily adversarial legal

20 system. The Appeals Chamber, based on the evidence before it,

21 meticulously determines as a first step whether a crime was established or

22 not. Only then does it decide, again based on the evidence before it,

23 whether or not an accused can be held individually criminally responsible

24 for these crimes. With a view to the victims and their relatives, it has

25 to be further emphasised that a decision of acquittal does not necessarily

Page 669

1 mean that a crime did not occur; it simply means that on the basis of the

2 evidence, the accused cannot be held individually responsible for these

3 crimes.

4 Let me now return to the summary of the judgement and briefly

5 repeat the law governing appellate proceedings.

6 As regards errors of fact pursuant to the jurisprudence of the

7 International Tribunal, the task of hearing, assessing, and weighing the

8 evidence presented at trial is left primarily to the Trial Chamber. Thus

9 the Appeals Chamber must give a margin of deference to a finding of fact

10 reached by a Trial Chamber. Only where the evidence relied on by the

11 Trial Chamber could not have been accepted by any reasonable trier of fact

12 or where the evaluation of the evidence is wholly erroneous will the

13 Appeals Chamber intervene.

14 When considering alleged factual errors raised by the Defence, the

15 Appeals Chamber will only intervene if no reasonable trier of fact could

16 have reached a conclusion of guilt beyond reasonable doubt. When

17 considering alleged factual errors raised by the Prosecution, the Appeals

18 Chamber will determine whether no reasonable trier of fact could have come

19 to the conclusion of acquittal.

20 Where a party contends that a Trial Chamber has made an error of

21 law, the Appeals Chamber is empowered only to reverse or to revise a Trial

22 Chamber's decision when there is an error of law invalidating the

23 decision.

24 I will now briefly turn to the law applicable in relation to the

25 modes of responsibility of the accused. The Trial Chamber convicted

Page 670

1 Kordic of planning, instigating, and ordering crimes pursuant to Article

2 7(1) of the Statute. The mens rea for these modes of responsibility is

3 established if the perpetrator acted with direct intent in relation to his

4 own planning, instigating, or ordering.

5 A lower form of intent is established when a person who orders an

6 act or omission with the awareness of the substantial likelihood that a

7 crime will be committed in the execution of that order has the requisite

8 mens rea for establishing responsibility under Article 7(1) of the Statute

9 pursuant to ordering. Ordering with such awareness has to be regarded as

10 accepting the crime. The Appeals Chamber finds that this correspondingly

11 applies in relation to the modes of responsibility of planning and

12 instigating.

13 In this context, I want to mention that the Appeals Chamber made

14 findings on several other legal issues in the judgement, such as the

15 question of a result requirement in the crime of unlawful attack on

16 civilians or civilian objects and the question of cumulative convictions.

17 These legal issues, however, will not be further discussed in this

18 summary.

19 I will now address Kordic's first ground of appeal and Cerkez's

20 third ground of appeal, namely, the alleged denial of the right to a fair

21 trial under Article 21 of the Statute.

22 Kordic submits that the Prosecution's frequent and substantive

23 changes to its stated case against the accused were unfair in that the

24 Prosecution failed to inform them promptly and in detail of the nature of

25 the charges against them, as required by Article 21 of the Statute. As

Page 671

1 such, the Prosecution allegedly confronted them with a "moving target."

2 The Appeals Chamber finds that counts 1 and 2, persecutions for

3 Kordic and Cerkez respectively, are too broad to be acceptable as to the

4 geographic and temporal scope of the charges and could, on their own,

5 materially impair the accused's ability to defend themselves. However,

6 the Appeals Chamber considers that counts 1 and 2 have to be read as

7 umbrella counts encompassing counts 3 to 44, which further inform the

8 accused in greater detail of the charges against them. With these

9 specifications, the Appeals Chamber is satisfied that the accused were

10 informed of the charges against them and were able, as they did, to defend

11 themselves before the Trial Chamber against the charges contained in the

12 umbrella counts.

13 In this context, the Appeals Chamber notes that the expulsion and

14 "forcible removal" of Bosnian Muslim civilians is mentioned in several

15 paragraphs of the trial judgement, however not in the part on the

16 responsibility of the accused. The Appeals Chamber finds that the reason

17 for this is that the indictment did not sufficiently inform the accused

18 that they had to defend themselves against the charge of expulsion and/or

19 forcible transfer. This vagueness of the indictment had not been cured in

20 the trial proceedings.

21 The accused argue that the Prosecution violated its Rule 68

22 disclosure obligations during pre-trial, the trial, and the post-trial

23 phase in various ways, and in relation to a variety of evidence. The

24 Appeals Chamber notes that the Prosecution has accounted for the

25 presentation of the evidence in this trial in extenso and is satisfied

Page 672

1 that it fulfilled its obligation to assist the Trial Chamber in good faith

2 in view of the complex nature of the case and of the difficulties

3 encountered in accessing large amounts of evidence not immediately

4 accessible for the Prosecution. Kordic and Cerkez failed to establish

5 that the Trial Chamber erred in permitting any such alleged Rule 68

6 violation. The arguments are finally dismissed.

7 Both Kordic and Cerkez submit that the Trial Chamber erroneously

8 held that an international armed conflict existed during the indictment

9 period and consequently found them guilty of grave breaches of the Geneva

10 Conventions of 1949 pursuant to Article 2 of the Statute. In addition,

11 Kordic claims that no armed conflict existed before 15 April 1993, thus

12 barring a conviction under Articles 3 and 5 of the Statute.

13 Contrary to the submissions of Kordic and Cerkez, the Appeals

14 Chamber finds that the Trial Chamber did not err in relying on the overall

15 control test according to which an armed conflict becomes international

16 when a foreign state exercises overall control over the military forces of

17 one of the belligerents. In addition, the Trial Chamber did not err by

18 taking into account the situation in other areas within Bosnia and

19 Herzegovina linked to the armed conflict in Central Bosnia when examining

20 the international character of the armed conflict. Once an armed conflict

21 has become international, the Geneva Conventions apply throughout the

22 respective territories of the warring parties.

23 The Appeals Chamber is satisfied that on the basis of the evidence

24 before it, a reasonable trier of fact could have found that Croatia

25 exercised overall control over the HVO at the relevant time. Likewise,

Page 673

12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.

Page 674

1 the Trial Chamber reasonably based its finding on reliable evidence that

2 Croatia provided leadership in the planning, coordination, and

3 organisation of the HVO and that there was an international armed conflict

4 between Croatia and Bosnia and Herzegovina.

5 I will now turn to an examination of the crimes for which Kordic

6 and Cerkez had been convicted by the Trial Chamber.

7 The Appeals Chamber considers, however, that the Trial Chamber in

8 most cases did not make specific and explicit factual findings with regard

9 to each element of the crimes but expressly concluded that the crimes were

10 established. The Appeals Chamber considers that by explicitly finding

11 that the crimes were established, the Trial Chamber implicitly found all

12 the relevant factual findings required to cover the elements of the

13 crimes. The Appeals Chamber considers that such an approach falls short

14 of what is required by the Statute of the International Tribunal.

15 However, this does not automatically lead to a dismissal of the charges.

16 The Appeals Chamber agrees with the submissions of the Prosecution that in

17 this particular circumstance, the issue before it is to establish whether

18 the Trial Chamber's findings that the crimes were established are

19 sustained on the record. Therefore, the Appeals Chamber had to consider

20 the crimes location by location and element by element, determining

21 whether the Trial Chamber's finding that that particular element was

22 factually established is a finding that a reasonable trier of fact could

23 have made. I will not discuss each of these crimes in great detail now.

24 For the purposes of this summary, it suffices to state that a number of

25 crimes have not been established and that the corresponding findings of

Page 675

1 the Trial Chamber had to be reversed. The disposition, however, will

2 explicitly identify, location by location, each crime for which the

3 accused finally are acquitted -- convicted.

4 Before I now turn to the grounds of appeal dealing with the

5 individual criminal responsibility of Kordic and Cerkez, I would like to

6 note that the Appeals Chamber particularly examined the Trial Chamber's

7 analysis of those orders and plans that were lawful and others that

8 included the commission of crimes. In this context, it was important to

9 consider the participation of Kordic and Cerkez at the various meetings

10 with different groups of people that were held on 15 April 1993 in the

11 Hotel Vitez, as this leads to a different knowledge and awareness on the

12 part of the accused of the crimes committed thereafter.

13 Kordic argues in his third ground of appeal that the Trial Chamber

14 erred in finding that the Bosnian Croats were engaged in a campaign of

15 persecution in Central Bosnia and in finding him guilty on this charge.

16 In particular in relation to the massacre in Ahmici, the Appeals

17 Chamber considered that a reasonable trier of fact could have concluded

18 that there was a meeting of the Bosnian Croat political leadership on 15

19 April 1993 at the Hotel Vitez and that Kordic was present at this meeting.

20 It was also reasonable to conclude that at this meeting a decision to

21 launch an attack against the Muslims was made. Based on the entirety of

22 direct and circumstantial evidence, a reasonable trier of fact could have

23 concluded that for Kordic this attack on Ahmici and other Lasva Valley

24 villages was aimed at ethnically cleansing the area for strategic reasons.

25 The Appeals Chamber also holds that it was reasonable to find that Kordic,

Page 676

1 as the responsible regional politician, planned and instigated the crimes

2 which occurred in Ahmici on 16 April 1993 and its associated hamlets

3 Santici, Pirici, and Nadioci.

4 In light of the Appeals Chamber's finding that it was indeed

5 reasonable to conclude that an order was given to kill all Muslim men of

6 military age, to expel civilians and to set houses on fire, and this order

7 was approved at that meeting of the political leadership, the Appeals

8 Chamber considered that a reasonable trier of fact could have concluded

9 that Kordic's involvement in the persecutory campaign was not limited to

10 certain areas of Lasva Valley, in particular Ahmici; instead, it included

11 in general the then following crimes, inter alia, the crimes which

12 occurred in Kiseljak municipality in April and June 1993.

13 In relation to the crime of unlawful imprisonment of civilians in

14 Kaonik, the Dubravica elementary school, the SDK building, the Vitez

15 cinema, the village of Rotilj, the Kiseljak barracks and the Kiseljak

16 municipal buildings, the Appeals Chamber considers that the Trial Chamber

17 did not err in inferring that Kordic bears responsibility for the ordering

18 of the establishment of these detention facilities and the detention

19 itself.

20 Kordic submits that the Trial Chamber committed an error of fact

21 occasioning a miscarriage of justice when it concluded that he had the

22 requisite mens rea for any of the crimes of persecution with which he was

23 charged.

24 The Appeals Chamber agrees with the Trial Chamber's findings that

25 Kordic knew that there were attacks on the civilian population which were

Page 677

1 widespread and systematic, and that these acts comprised part of these

2 attacks.

3 I will now turn to the specific intent to discriminate on

4 political, racial, or religious grounds, and I want to stress first that

5 such a specific intent in general can only be inferred from objective

6 facts and the general conduct of an accused seen in its entirety. Only on

7 rare occasions it will be possible to establish such an intent on

8 documents or intercepts laying down a perpetrator's own mens rea.

9 Here, the circumstantial evidence is clear. At a meeting on 27

10 December 1991 in Zagreb, Kordic said that the Croatian people of the

11 Travnik area were ready to accede to the Croatian state, and I quote: "at

12 all costs ... any other option would be considered treason, save the clear

13 demarcation of Croatian soil in the territory of Herceg-Bosna."

14 Further, at a January 1992 rally in Busovaca, Kordic was seen --

15 was to be seen speaking to a cheering, flag-waving crowd, and he said that

16 the rally was proof that the Croatian people in Busovaca are part of the

17 united Croatian nation and that the Croatian community of Herceg-Bosna,

18 including Busovaca, is "Croatian land and that is how it will be."

19 The Appeals Chamber considers that, inter alia, on the basis of

20 the evidence outlined above concerning Kordic's political activities and

21 inclinations, his strong nationalist and ethnic stance and his desire to

22 attain the sovereign Croatian state within the territory of Bosnia and

23 Herzegovina at any cost, Kordic possessed the specific intent to

24 discriminate which is required for the crime of persecutions.

25 On the basis of the foregoing, the Appeals Chamber affirms the

Page 678

1 conviction under count 1, persecutions, a crime against humanity, in

2 relation to Kordic.

3 In relation to Kordic's fourth ground of appeal, dealing with his

4 criminal responsibility, the Appeals Chamber considers that the Trial

5 Chamber's finding that Kordic intended the crimes associated with the

6 attack in Novi Travnik as early as in October 1992 was a finding no

7 reasonable trier of fact could have made. The Appeals Chamber therefore

8 reverses the Trial Chamber's finding that Kordic was guilty for wanton

9 destruction not justified by military necessity and plunder in Novi

10 Travnik in October 1992.

11 With respect to the crimes committed in Busovaca in January 1993,

12 the Appeals Chamber, however, has found that a reasonable trier of fact

13 could have concluded that numerous civilians were targeted and killed in

14 the town, and that murder, a crime against humanity as well as a crime of

15 unlawful attacks on civilian objects, were committed in this town in

16 January 1993. The Appeals Chamber refers further to the Trial Chamber's

17 findings as to the role of Kordic in the campaign of persecution,

18 including his role in the HVO takeover of municipalities, including

19 Busovaca, and his role in the events leading to the conflict and on the

20 eve of the conflict.

21 The attack on Busovaca was directed against Muslim civilians and

22 civilian objects and aimed at the civilian population. Muslim civilians

23 were killed, expelled, and their property destroyed. It was the Trial

24 Chamber's finding that Kordic, as a political leader with substantial

25 military influence, was involved in the planning and ordering of these

Page 679

12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.

Page 680

1 crimes. The Appeals Chamber concludes that the Trial Chamber's finding

2 that Kordic had the requisite mens rea for these crimes is reasonable.

3 With respect to the crimes committed between April and June 1993

4 in the Lasva Valley, the Appeals Chamber considers that following the

5 meeting of politicians at which Kordic was present on 15 April 1993, a

6 general plan existed to expel the Muslim civilians and to destroy civilian

7 houses. Kordic participated as a senior regional politician in the

8 planning of the military operation and attack against Ahmici, an operation

9 which was aimed at cleansing these areas of Muslims.

10 The Appeals Chamber considers that this general plan included the

11 whole of the Lasva Valley and that the crimes explicitly discussed were to

12 kill military-aged men, expel civilians, and destroy houses. For these

13 crimes Kordic had direct intent. Kordic approved the general plan,

14 knowing that these crimes would be committed, with the awareness of the

15 substantial likelihood that other crimes such as plunder and unlawful

16 detention of civilians would be committed in the execution of this general

17 plan. Planning with such awareness has to be regarded as accepting these

18 crimes.

19 In conclusion, the Appeals Chamber notes that some of the appeals

20 of Kordic have been granted, however, never in relation to counts in their

21 entirety but limited to certain locations.

22 I will now turn to the Prosecution's grounds of appeal. At the

23 outset, it shall be noted that the Prosecution withdrew its first ground

24 of appeal relating to the applicable law of persecutions due to the fact

25 that the underlying legal issue has been settled in the meantime by the

Page 681

1 jurisprudence of the Appeals Chamber.

2 The Prosecution's second and third ground of appeal relate to the

3 Trial Chamber's acquittal of Cerkez for the crimes committed in Ahmici.

4 The Prosecution submits that the Trial Chamber erred both in law

5 and in fact due to a misapplication of Article 7(1) of the Statute to the

6 facts of the case and the alleged failure to consider all relevant

7 evidence on the Trial record.

8 While the Trial Chamber held that the Viteska Brigade participated

9 in operations in Vitez, Veceriska and Ahmici during 16 April 1993, it

10 found that the Viteska Brigade took part in the operation in Ahmici on 16

11 April 1993 only later in the day and not during the initial assault.

12 The Prosecution argues that the factual findings should have led

13 the Trial Chamber to find Cerkez criminally responsible under Article 7(1)

14 of the Statute based on the following types of participation of Cerkez and

15 the Viteska Brigade: Participation of the military planning for the

16 attack on Ahmici; providing significant assistance to the military police

17 units involved in the attack by way of providing means of transportation

18 and preventing UNPROFOR from entering the Ahmici area; and performing

19 physical acts of persecution by detaining Muslims in Ahmici.

20 The Appeals Chamber will first address the Prosecution's

21 submission that the Trial Chamber's finding that the attack on Ahmici was

22 part of a common design or plan conceived and executed by the Bosnian

23 Croat leadership to ethnically cleanse the Lasva Valley of Muslims should

24 have led to a finding that Cerkez was criminally responsible for the

25 crimes in Ahmici.

Page 682

1 As already discussed in relation to Kordic, the Trial Chamber

2 found that the crimes committed in Ahmici were part of this persecutory

3 campaign. However, and contrary to the case of Kordic, the Appeals

4 Chamber finally concludes that there are neither findings nor sufficient

5 evidence to establish that Cerkez had responsibility for the persecutory

6 campaign that included the crimes committed in Ahmici. Accordingly, the

7 submission of the Prosecution that Cerkez should have been held criminally

8 responsible for these crimes based on his participation in the persecutory

9 campaign fails.

10 The Appeals Chamber also considered whether the findings of the

11 Trial Chamber, correctly construed, prove Cerkez's criminal responsibility

12 for the crimes committed in Ahmici outside his alleged participation in a

13 persecutory campaign.

14 The Prosecution submits in particular that the Viteska Brigade was

15 assigned to block the road from Vitez in order to prevent UNPROFOR from

16 entering the Ahmici area.

17 The Appeals Chamber notes, however, that the Trial Chamber never

18 clearly established, and the Trial record does not provide sufficient

19 evidence, whether the purpose of the roadblock was militarily justified or

20 a preparatory or sheltering act for the crimes to be committed in Ahmici.

21 In addition, insufficient evidence has been adduced to show conclusively

22 that Cerkez knew about the allegedly criminal purpose of the roadblock.

23 Cerkez's submission was that the sole task of the Viteska Brigade was to

24 block the direction of a possible ABiH attack from the area of Kruscica

25 and Vraniska and is an equally possible one. Apparently the Trial Chamber

Page 683

1 correctly applied the principle in dubio pro reo; thus the Appeals Chamber

2 cannot identify any error of fact in relation to the question at issue.

3 Therefore, the Trial Chamber correctly held that neither Cerkez nor the

4 Viteska Brigade participated in the crimes committed in Ahmici.

5 In its third ground of appeal, the Prosecution submits that the

6 Trial Chamber erred in its determination that Cerkez did not bear criminal

7 responsibility under Article 7(1) and/or 7(3) of the Statute because the

8 Trial Chamber failed to accept the evidence on the active presence of

9 members of the Viteska Brigade during the attack in Ahmici.

10 The Appeals Chamber has examined without any affirmative result

11 witness testimonies and documentary evidence to which the Prosecution

12 referred in order to prove the alleged presence of members of the Viteska

13 Brigade during the initial attack in Ahmici. The Appeals Chamber finds

14 that a reasonable trier of fact could have come to the conclusion that the

15 evidence does not prove that soldiers of the Viteska Brigade under the

16 command of Cerkez participated in the commission of crimes in Ahmici on 16

17 April 1993. Thus, both the second and the third ground of appeal of the

18 Prosecution are rejected.

19 Turning now to Cerkez's second and fourth ground of appeal dealing

20 with his criminal responsibility. The Appeals Chamber notes that in

21 addition to the inferences that may be drawn from Cerkez's participation

22 in the attacks on Donja Veceriska and Stari Vitez, the Trial Chamber

23 placed emphasis on his participation in the second meeting in the Hotel

24 Vitez on 15 April 1993. Although contested by Cerkez, the Appeals Chamber

25 finds that a reasonable trier of fact could have found that Cerkez was

Page 684

1 present at this second meeting.

2 However, the Trial Chamber made no findings as to what was

3 discussed during this second meeting. It was said that the Muslims would

4 attack in the morning, and the reasonable conclusion is that the reference

5 to Muslims in this context is the Muslim forces and the HVO were to attack

6 them before they were attacked themselves. Thus, the Appeals Chamber

7 finds that a reasonable trier of fact could have found that Cerkez's

8 presence at the second meeting on 15 April 1993 does not establish any

9 intent in relation to any crime.

10 In relation to Cerkez's responsibility for detention-related

11 crimes, the Appeals Chamber finds that with respect to the Vitez

12 veterinary station and the chess club, no reasonable trier of fact could

13 have found that Cerkez incurred criminal responsibility for imprisonment

14 and unlawful confinement of Bosnian Muslim civilians. The Appeals Chamber

15 concludes, however, that it was reasonable to find that Cerkez bears

16 criminal responsibility for the imprisonment and unlawful confinement of

17 Bosnian Muslim civilians in the Vitez cinema and the Vitez SDK building

18 before he ordered their release at the end of April 1993.

19 Furthermore, the Appeals Chamber finds that it was reasonable to

20 conclude that this unlawful detention amounts to persecutions. The

21 civilian detainees in the SDK building and the Vitez cinema were solely

22 Bosnian Muslims. Cerkez knew that the detainees were Muslims and that

23 they were detained because they were Muslims. It is evident that a

24 specific ethnic group is discriminated when all the detainees belong to

25 this group while the guards belong to another ethnic group. By knowingly

Page 685

12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.

Page 686

1 committing these acts he manifested the intent to systematically

2 discriminate against them.

3 All other convictions of the Trial Chamber in relation to Cerkez

4 are reversed. The reasons for this are to be found in the judgement.

5 I will now turn to the question of sentencing.

6 All the three parties appealed both sentences. Kordic submits

7 that the Trial Chamber erroneously overlooked substantial mitigating

8 evidence and that he should not receive a higher sentence than four years.

9 However, the Appeals Chamber finds that the Trial Chamber did not venture

10 outside its scope of discretion when it imposed its sentence on Kordic.

11 Similarly, the Appeals Chamber finds that the Prosecution did not

12 demonstrate that the Trial Chamber made a discernible error in sentencing.

13 Therefore, Kordic's sixth and the Prosecution's fourth ground of appeal

14 are rejected.

15 With respect to Cerkez's sentence, the Appeals Chamber has found

16 him guilty pursuant to Article 7(1) of the Statute for count 2,

17 persecutions, a crime against humanity; count 29, imprisonment, a crime

18 against humanity; and count 30, unlawful confinement of civilians, a grave

19 breach of the Geneva Conventions. The Appeals Chamber has significantly

20 reversed the findings of the Trial Chamber and has granted several of

21 Cerkez's grounds of appeal, overturning most of his convictions.

22 Therefore, the Appeals Chamber is being called upon to mete out a sentence

23 de novo.

24 During its final deliberations on 2 December 2004, the Appeals

25 Chamber arrived at the conclusion that the revised and adequate sentence

Page 687

1 for Cerkez is lower than the time he had already spent in the United

2 Nations Detention Unit. Thus, the Appeals Chamber had the obligation to

3 order his immediate release, as there was no longer a substantive reason

4 justifying a continued detention. It was irrelevant to decide the

5 question whether he could have only been released on the basis of a final

6 judgement, as neither the Statute nor the Rules contain such a

7 requirement. This release was neither a provisional nor an early release;

8 instead, it was a final release. Since this order manditorily had to be

9 made with immediate effect, it did not contain the underlying reasons

10 which are to be found in the judgement and have, in part, been summarised

11 above.

12 When determining the sentence, the Appeals Chamber considered the

13 applicable purposes of sentencing, in particular that of affirmative

14 general prevention. This important purpose aims at reassuring the public

15 that the legal system has been upheld, and at influencing the public in

16 general not to violate this legal system. The Appeals Chamber also

17 considered the general practice regarding prison sentences in the courts

18 of the former Yugoslavia.

19 It further took into account the following aggravating

20 circumstances: The accused's position as a middle-ranking HVO commander

21 and the fact that among the victims of these offences were both young and

22 elderly people and women, being particularly vulnerable in war times.

23 The Appeals Chamber also took into account the following

24 mitigating circumstances: The accused's voluntary surrender to the

25 International Tribunal, the fact that he did not have a prior criminal

Page 688

1 record, his personal and family circumstances, and the fact that his

2 criminal responsibility is limited to a relatively short period of time,

3 namely approximately 14 days.

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

5 Appeals Chamber's judgement that is the disposition.

6 Mr. Kordic, would you please stand up.

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

8 Article 25 of the Statute and Rule 117 of the Rules, noting the respective

9 written submissions of the parties and the arguments they presented at the

10 hearing of 17, 18, and 19 May 2004, sitting in open session, with respect

11 to the Prosecution grounds of appeal, notes that the Prosecution's first

12 ground of appeal become moot as it has been withdrawn; rejects the

13 Prosecution's remaining four grounds of appeal.

14 With respect to Kordic's grounds of appeal, rejects Kordic's

15 first, second, fifth and sixth grounds of appeal, allows the ground of

16 appeal concerning his responsibility for crimes committed in Novi Travnik

17 in October 1992, and reverses his convictions pursuant to Article 7 of the

18 Statute under counts 38 and 39, allows in part the ground of appeal

19 concerning his responsibility for crimes committed in Busovaca in January

20 1993; reverses his convictions pursuant to Article 7(1) of the Statute

21 under counts 10 and 12; and affirms his convictions pursuant to Article

22 7(1) of the Statute under count 1, persecutions, a crime against humanity;

23 3, unlawful attack on civilians, a violation of the laws or customs of

24 war; 4, unlawful attack on civilian objects, a violation of the laws or

25 customs of war; 7, murder, a crime against humanity; 8, wilful killing, a

Page 689

1 grave breach of the Geneva Conventions of 1949; 38, wanton destruction not

2 justified by military necessity, a violation of the laws or customs of

3 war; and 39, plunder of public or private property, a violation of the

4 laws or customs of war;

5 Allows the ground of appeal concerning his responsibility for

6 crimes committed in Vitez and Stari Vitez in April 1993, and reverses his

7 convictions pursuant to Article 7(1) of the Statute under counts 3, 4, 7,

8 8, 10, 12, 38, 39 and 43 in relation to Stari Vitez;

9 Allows the ground of appeal concerning his responsibility for

10 crimes committed in the Vitez Veterinary Station and the Vitez chess club

11 and reverses his convictions pursuant to Article 7(1) of the Statute under

12 counts 21 and 22;

13 Allows in part the ground of appeal concerning his responsibility

14 for crimes committed in Veceriska and Donja Veceriska in April 1993,

15 reverses his convictions pursuant to Article 7(1) of the Statute under

16 counts 3, 7, 8, 10, 12, and 39; and affirms his convictions pursuant to

17 Article 7 of the Statute under count 1, persecutions, a crime against

18 humanity; 4, unlawful attack on civilian objects, a violation of the laws

19 or customs of war; and 38, wanton destruction not justified by military

20 necessity, a violation of the laws or customs of war;

21 Rejects the ground of appeal concerning his responsibility for

22 crimes committed in Ahmici in April 1993 and affirms his convictions

23 pursuant to Article 7(1) of the Statute under count 1, persecutions, a

24 crime against humanity; 3, unlawful attack on civilians, a violation of

25 the laws or customs of war; 4, unlawful attack on civilian objects, a

Page 690

1 violation of the laws or customs of war; 7, murder, a crime against

2 humanity; 8, wilful killing, a grave breach of the Geneva Conventions of

3 1949; 10, inhumane acts, a crime against humanity; 12, inhuman treatment,

4 a grave breach of the Geneva Conventions of 1949; 38, wanton destruction

5 not justified by military necessity, a violation of the laws or customs of

6 war; 39, plunder of public or private property, a violation of the laws or

7 customs of war; and 43, destruction or wilful damage to institutions

8 dedicated to religion or education, a violation of the laws or customs of

9 war;

10 Allows in part the ground of appeal concerning his responsibility

11 for crimes committed in Nadioci and Pirici in April 1993, reverses his

12 conviction pursuant to Article 7(1) of the Statute under counts 4, 10, 12,

13 and 38; and affirms his convictions pursuant to Article 7(1) of the

14 Statute under counts 1, persecutions, a crime against humanity; 3,

15 unlawful attack on civilians, a violation of the laws or customs of war;

16 7, murder a crime against humanity; and 8, wilful killing, a grave breach

17 of the Geneva Conventions of 1949;

18 Allows in part the grounds of appeal concerning his responsibility

19 for crimes committed in Santici in April 1993, reverses his convictions

20 pursuant to Article 7(1) of the Statute under counts 10 and 12, and

21 affirms his convictions pursuant to Article 7(1) of the Statute under the

22 count 1, persecutions, a crime against humanity; 3, unlawful attack on

23 civilians, a violation of the laws or customs of war; 4, unlawful attack

24 on civilian objects, a violation of the laws or customs of war; 7, murder

25 a crime against humanity; 8, wilful killing, a grave breach of the Geneva

Page 691

1 Conventions of 1949; and 38, wanton destruction not justified by military

2 necessity, a violation of the laws or customs of war;

3 Allows in part the ground of appeal concerning his responsibility

4 for crimes committed in Rotilj in April through September 1993, reverses

5 his convictions pursuant to Article 7(1) of the Statute under counts 4 and

6 38, and affirms his convictions pursuant to Article 7(1) of the Statute

7 under counts 1, persecutions, a crime against humanity; 3, unlawful attack

8 on civilians, a violation of the laws or customs of war; 7, murder, a

9 crime against humanity; 8, wilful killing, a grave breach of the Geneva

10 Conventions of 1949; 10, inhumane acts, a crime against humanity; 12,

11 inhuman treatment, a grave breach of the Geneva Conventions of 1949; and

12 39, plunder of public or private property, a violation of the laws or

13 customs of war; 21, imprisonment, a crime against humanity; and 22,

14 unlawful confinement of civilians, a grave breach of the Geneva

15 Conventions of 1949;

16 Allows in part the ground of appeal concerning his responsibility

17 for crimes committed in Han Ploca-Grahovci in June 1993, reverses his

18 convictions pursuant to Article 7(1) of the Statute under counts 10 and

19 12, and affirms his convictions pursuant to Article 7(1) of the Statute

20 under counts 1, persecutions, a crime against humanity; 7, murder, a crime

21 against humanity; 8, wilful killing, a grave breach of the Geneva

22 Conventions of 1949; 38, wanton destruction not justified by military

23 necessity, a violation of the laws or customs of war; 39, plunder of

24 public or private property, a violation of the laws or customs of war; and

25 43, destruction or wilful damage to institutions dedicated to religion or

Page 692

1 education, a violation of the laws or customs of war.

2 Rejects the ground of appeal concerning his --

3 THE INTERPRETER: Microphone, please, Your Honour.

4 JUDGE SCHOMBURG: Rejects the ground of appeal concerning his

5 responsibility for crimes committed in Tulica in June 1993, and affirms

6 his convictions pursuant to Article 7(1) of the Statute under counts 1,

7 persecutions, a crime against humanity; 7, murder, a crime against

8 humanity; 8, wilful killing, a grave breach of the Geneva Conventions of

9 1949; 10, inhumane acts, a crime against humanity; 12, inhuman treatment,

10 a grave breach of the Geneva Conventions of 1949; 38, wanton destruction

11 not justified by military necessity, a violation of the laws or customs of

12 war; and 39, plunder of public or private property, a violation of the

13 laws or customs of war;

14 Allows in part the ground of appeal concerning his responsibility

15 for crimes committed in the town of Kiseljak in April 1993, and reverses

16 his convictions pursuant Article 7(1) of the Statute under counts 38 and

17 39;

18 Rejects the grounds of appeal concerning his responsibility for

19 crimes committed in the Kiseljak municipal building in June 1993, the

20 Kiseljak barracks, Kaonik, Vitez cinema, the SDK building, and the

21 Dubravica elementary school, and affirms his convictions pursuant to

22 Article 7(1) of the Statute under counts 1, persecutions, a crime against

23 humanity; 21, imprisonment, a crime against humanity; and 22, unlawful

24 confinement of civilians, a grave breach of the Geneva Conventions of

25 1949;

Page 693

1 Allows in part the ground of appeal concerning his responsibility

2 for crimes committed in Svinjarevo, in April 1993, reverses his conviction

3 pursuant to Article 7(1) of the Statute under count 39, and affirms his

4 convictions pursuant to Article 7(1) of the Statute under count 1,

5 persecution, a crime against humanity; and 38, wanton destruction not

6 justified by military necessity, a violation of the laws or customs of

7 war;

8 Rejects the grounds of appeal concerning his responsibility for

9 crimes committed in Gomoinica in April 1993, and affirms his convictions

10 pursuant to Article 7(1) of the Statute under counts 1, persecutions, a

11 crime against humanity; 38, wanton destruction not justified by military

12 necessity, a violation of the laws or customs of war; and 39, plunder of

13 public or private property, a violation of the laws or customs of war;

14 Rejects the ground of appeal concerning his responsibility for

15 crimes committed in Ocehnici, Behrici, Gromiljak, Polje Visnjica,

16 Visnjica, and Gacice in April 1993, and affirms his convictions pursuant

17 to Article 7(1) of the Statute under counts 1, persecutions a crime

18 against humanity; and 38, wanton destruction not justified by military

19 necessity, a violation of the laws or customs of war;

20 Allows the ground of appeal concerning his responsibility for

21 crimes committed in Merdani in January 1993 and reverses his conviction

22 pursuant to Article 7(1) of the Statute under count 38;

23 Allows the ground of appeal concerning his responsibility for

24 crimes committed in Loncari in April 1993, and reverses his conviction

25 pursuant to Article 7(1) of the Statute under count 39; and

Page 694

1 Reverses all his remaining convictions under count 1.

2 The Appeals Chamber affirms the sentence of 25 years of

3 imprisonment, subject to credit being given under Rule 101(C) of the Rules

4 for the period he has spent in detention for the purposes of this case and

5 orders, in accordance with Rule 103(C) and Rule 107 of the Rules, that

6 Dario Kordic is to remain in the custody of the International Tribunal

7 pending the finalisation of arrangements for his transfer to the state

8 where his sentence will be served.

9 With respect to Cerkez's grounds of appeal, rejects Cerkez's

10 first, third, and fifth ground of appeal, allows Cerkez's ground of appeal

11 concerning his responsibility for crimes committed in Veceriska, Donja

12 Veceriska and Stari Vitez in April 1993, and reverses his convictions

13 pursuant to Article 7(1) and 7(3) of the Statute under counts 5, 6, 14,

14 15, 17, 19, 41, 42 and 44;

15 Allows in part Cerkez's ground of appeal concerning his

16 responsibility for crimes committed in Vitez in April 1993, and reverses

17 his convictions pursuant to Article 7(1) and 7(3) of the Statute under

18 counts 5, 6, 14, 15, 17, 19, 33, 35, 41, 42, and 44;

19 Allows the ground of appeal concerning his responsibility for

20 crimes committed in the Vitez chess club and the Vitez Veterinary Station,

21 and reverses his convictions pursuant to Articles 7(1) and 7(3) of the

22 Statute under counts 29, 30, and 31;

23 Allows in part the ground of appeal concerning his responsibility

24 for crimes committed in the Vitez cinema and the SDK building and reverses

25 his conviction pursuant to Articles 7(1) and 7(3) of the Statute under

Page 695

1 count 31;

2 Allows in part the ground of appeal concerning his responsibility

3 for crimes committed in the Vitez cinema and the SDK building in April

4 1993, reverses his convictions pursuant to Article 7(3) of the Statute in

5 relation to counts 29 and 30, and affirms his convictions pursuant to

6 Article 7(1) of the Statute under counts 2, persecutions, a crime against

7 humanity; count 29, imprisonment, a crime against humanity; and count 30,

8 unlawful confinement of civilians, a grave breach of the Geneva

9 Conventions of 1949;

10 Reverses all his remaining convictions under count 2 and all

11 convictions pursuant to Article 7(3) of the Statute.

12 The Appeals Chamber imposes a new sentence of six years of

13 imprisonment subject to credit being given under Rule 101(C) of the Rules

14 for the period he has spent in detention.

15 And finally - this is valid for both accused - rules that this

16 judgement shall be enforced immediately pursuant to Rule 118 of the Rules.

17 Mr. Kordic, you may sit down.

18 Would the usher please be so kind and distribute the judgement to

19 the parties and the Bench and two draft, I emphasise draft, summaries in

20 B/C/S to both Defence teams and one to Mr. Dario Kordic.

21 Thank you. The proceedings in this case are hereby concluded.

22 --- Whereupon the Appeals Judgement adjourned

23 at 2.02 p.m.