Tribunal Criminal Tribunal for the Former Yugoslavia

Page 885

 1                           Wednesday, 29 November 2017

 2                           [Judgement]

 3                           [Open session]

 4                           [The appellants entered court]

 5                           [The Appellant Pusic not present]

 6                           --- Upon commencing at 10.00 a.m.

 7             JUDGE AGIUS:  Good morning, everybody.

 8             Madam Registrar, could you call the case, please.

 9             THE REGISTRAR:  Good morning, Your Honours.  This is case number

10     IT-04-74-A, The Prosecutor versus Mr. Prlic, Mr. Stojic, Mr. Praljak,

11     Mr. Petkovic, Mr. Coric, and Mr. Pusic.

12             JUDGE AGIUS:  I thank you.  I am pleased to recognise the

13     presence of the Deputy Registrar of the Tribunal today.

14             Let me now ask for the appearances of the parties, starting with

15     the Prosecution.

16             MR. STRINGER:  Good morning, Mr. President, Your Honours.  For

17     the Prosecution, appearing is myself Douglas Stringer, with Laurel Baig,

18     Barbara Goy, Katrina Gustafson, Aditya Menon, and Janet Stewart.

19             JUDGE AGIUS:  Thank you very much.

20             And appearances for the Defence.  I note, however, that Mr. Pusic

21     has waived his right to be present at the pronouncement of the appeal

22     Judgement today.  So I'll just proceed to acknowledge the presence of the

23     Defence counsel.

24             For Mr. Prlic.

25             MR. KARNAVAS:  Good morning, Your Honour.  Michael Karnavas and


Page 886

 1     Suzana Tomanovic.

 2             JUDGE AGIUS:  Thank you.

 3             For Mr. Stojic.

 4             MS. NOZICA: [Interpretation] Appearing on behalf of Mr. Stojic,

 5     Senka Nozica and our legal consultant Aidan Ellis.

 6             JUDGE AGIUS:  Thank you.

 7             For Mr. Praljak.

 8             MS. PINTER: [Interpretation] Good morning, Your Honour.  Good

 9     morning to you and to all those present in and around the courtroom.  On

10     behalf of Mr. Praljak, Ms. Nika Pinter and Ms. Natacha Fauveau-Ivanovic,

11     from Paris appearing.

12             JUDGE AGIUS:  Thank you.

13             For Mr. Petkovic.

14             MS. ALABURIC: [Interpretation] Good morning, Your Honour.  On

15     behalf of Mr. Petkovic, Ms. Alaburic and Mr. Lazic.

16             JUDGE AGIUS:  Thank you.

17             For Mr. Coric.

18             MS. TOMASEGOVIC-TOMIC: [Interpretation] Good morning, Your

19     Honours.  Lead counsel Dijana Tomasegovic-Tomic and co-counsel

20     Drazen Plavec, appearing on behalf of Mr. Coric.

21             JUDGE AGIUS:  Thank you.

22             And for Mr. Pusic.

23             MR. IBRISIMOVIC: [Interpretation] Good morning, Your Honour.  On

24     behalf of Mr. Pusic, Mr. Ibrisimovic and Mr. Sahota appearing.

25             JUDGE AGIUS:  Before I proceed any further, I would like to


Page 887

 1     confirm with the Defence appellants whether they can all follow the

 2     proceedings in a language that they can understand.

 3             THE APPELLANT PRLIC:  Good morning, Mr. President, and members of

 4     chamber.  I'm able to follow --

 5             JUDGE AGIUS:  Thank you.

 6             THE APPELLANT PRLIC:  -- in a language which I've understood.

 7             JUDGE AGIUS:  Thank you.

 8             Mr. Stojic.

 9             THE APPELLANT STOJIC: [Interpretation] Good morning, Your Honour.

10     Everything is fine.  Thank you.

11             JUDGE AGIUS:  Thank you.

12             Mr. Praljak.

13             THE APPELLANT PRALJAK: [Interpretation] Thank you.  I can follow

14     completely.

15             JUDGE AGIUS:  Thank you.

16             Mr. Petkovic.

17             THE APPELLANT PETKOVIC: [Interpretation] Good morning, Your

18     Honour.  I can follow.

19             JUDGE AGIUS:  Thank you.

20             And Mr. Coric.

21             THE APPELLANT CORIC: [Interpretation] Good morning, Your Honour.

22     Everything is fine.  Thank you.

23             JUDGE AGIUS:  I thank you all and good morning to all of you.

24             The Appeals Chamber is sitting today in accordance with Rule

25     117(D) of the Tribunal's Rules of Procedure and Evidence and the


Page 888

 1     Scheduling Order issued on 5 October 2017.  This will be the last sitting

 2     of and the final Judgement pronounced by the International Criminal

 3     Tribunal for the former Yugoslavia.

 4             This has been a long and complex case, with much time having

 5     passed since the trial proceedings began in 2006 and since the Appeals

 6     Chamber was first seized by a Notice of Appeal in June 2013.  The appeal

 7     hearing in this case was held between 20 and 28 March of this year.  The

 8     Appeals Chamber would like to thank the parties for their co-operation

 9     and professionalism, as well as all sections of the Registry for their

10     dedication and support.

11             I will now summarise the findings of the Appeals Chamber in the

12     case of Jadranko Prlic, Bruno Stojic, Slobodan Praljak, Milivoj Petkovic,

13     Valentin Coric, and Berislav Pusic.  Not every issue discussed in the

14     Judgement will be addressed in this summary.  Also, and very importantly,

15     this oral summary does not constitute any part of the authoritative

16     written Judgement of the Appeals Chamber which will be distributed to the

17     parties at the close of this hearing.

18             The events giving rise to the appeals in this case occurred

19     between 1992 and 1994, in eight municipalities and five detention centres

20     in the territory of Bosnia and Herzegovina that was claimed as part of

21     the Croatian Community and later the Croatian Republic of Herceg-Bosna.

22     Prlic, Stojic, and Coric served in the government of these entities

23     respectively as President of the government, Head of the Department of

24     Defence, and Chief of the Military Police Administration, with Coric

25     later being appointed Minister of the Interior.  Praljak and Petkovic


Page 889

 1     served at different times as the Commander or Chief of the Main Staff of

 2     the Bosnian Croat army, or the HVO, as I will be referring to it.  Pusic

 3     served as an officer in the military police of the HVO and was later

 4     appointed as the head of its exchange service and detention commission,

 5     bodies which were mandated with the responsibilities in the areas of

 6     detention and prisoner exchange.  Praljak also served as the assistant

 7     and then Deputy Minister of Defence of Croatia, before later returning to

 8     Croatia as an advisor to the Croatian Minister of Defence.

 9             The Trial Chamber found that by mid-January 1993, a joint

10     criminal enterprise, or a JCE as I will be referring to it, had come into

11     existence that was aimed at creating a Croatian entity in Bosnia and

12     Herzegovina that would facilitate the reunification of the Croatian

13     people.  According to the Trial Chamber, this joint criminal enterprise

14     had as its common criminal purpose the "domination by Croats of the

15     Croatian Republic of Herceg-Bosna through ethnic cleansing of the Muslim

16     population."

17             The members of this JCE were found to have implemented an entire

18     system for deporting the Muslim population of the Croatian Republic of

19     Herceg-Bosna.  This system consisted of a wide range of crimes:  That is

20     the removal and placement in detention of civilians, murders and

21     destruction of property during attacks, mistreatment and destruction of

22     property during eviction operations, mistreatment and very harsh

23     conditions of confinement in HVO detention centres, the use of detainees

24     on the front lines for labour or as human shields, and the removal of

25     detainees and their families to other territories once they were released


Page 890

 1     from detention.  The Trial Chamber found that thousands of persons lay

 2     victim to these acts of violence, which were committed in an organised

 3     fashion by the military and political forces of the HVO.

 4             The Trial Chamber concluded that all six Defence appellants were

 5     participants in the JCE.  They were convicted for committing grave

 6     breaches of the Geneva Conventions, violations of the laws or customs of

 7     war, and crimes against humanity, including, murder, persecution,

 8     imprisonment, unlawful labour, forcible transfer, deportation, inhumane

 9     acts, inhumane treatment, extensive destruction of property not justified

10     by military necessity, destruction of institutions dedicated to religion

11     or education, and unlawful attacks on civilians, and, lastly, unlawful

12     infliction of terror on civilians.  In addition, under the third category

13     of JCE liability, Prlic, Stojic, Petkovic, and Coric were also convicted

14     of rape and sexual assault, and Defence appellants, with the exception of

15     Pusic, were found guilty of plunder and extensive appropriation of

16     property.  Coric was also found to bear superior responsibility for

17     certain crimes that occurred in 1992.

18             The Trial Chamber sentenced Prlic to 25 years of imprisonment,

19     Stojic, Praljak, and Petkovic to 20 years each, Coric to 16 years, and

20     Pusic to 10 years of imprisonment.  All six Defence appellants as well as

21     the Prosecution have lodged appeals against the Trial Judgement, and I

22     now turn to these appeals.

23             Starting with the fairness of proceedings, Prlic contends that he

24     was systematically denied adequate time and facilities to question

25     witnesses, while Stojic alleges that the Trial Chamber erroneously relied


Page 891

 1     on evidence related to Franjo Tudjman and other senior leaders of the

 2     Republic of Croatia who passed away before the proceedings started.  The

 3     Appeals Chamber finds no merit in either contention and dismisses them

 4     accordingly.

 5             With regard to the indictment and other fair trial issues, Stojic

 6     and Petkovic allege that the Trial Chamber impermissibly altered the

 7     Prosecution's charges against them by contemplating a JCE other than the

 8     one pleaded in the indictment.  Petkovic adds that the Prosecution's

 9     final trial brief indicated that it was pursuing a narrower case than the

10     one for which he was convicted.  The Prosecution responds that the Trial

11     Chamber did not depart from the indictment, that the Prosecution's

12     opening statement, presentation of evidence, and mid-case submissions

13     were consistent with the indictment, and that its final trial brief did

14     not alter the notices of its charges.  The Appeals Chamber observes that

15     the indictment clearly put the Defence appellants on notice of the crimes

16     and modes of responsibility with which they were charged.  The Appeals

17     Chamber further considers, Judge Pocar dissenting, that the Prosecution's

18     final trial brief, which did not expressly and formally withdraw any

19     allegations, cannot reasonably be interpreted to mean that the

20     Prosecution was abandoning modes of liability charged in the indictment.

21     The Appeals Chamber therefore finds, Judge Pocar dissenting, that Stojic

22     and Petkovic have failed to demonstrate any error.

23             Coric also challenges three aspects of the notice of charges

24     against him.  The first and second challenges alleging that the Trial

25     Chamber exceeded the indictment in finding a state of occupation and in


Page 892

 1     finding the extent of protections applicable to certain detainees are

 2     unsubstantiated and unpersuasive.  The third such challenge is that the

 3     Trial Chamber erred by considering that he contributed to the JCE by

 4     exercising his powers as Minister of the Interior since this was not

 5     charged in the indictment.  The Prosecution responds that he was provided

 6     with clear notice that any defect was appropriately cured and that, in

 7     any event, Coric's ability to prepare his Defence was not materially

 8     impaired.  The Appeals Chamber finds that the indictment was ambiguous on

 9     this point, thereby rendering it vague and defective.  This defect was

10     not cured through the Prosecution's post-indictment disclosures.  A

11     defective indictment which has not been cured causes prejudice to the

12     accused, and this defect can only be deemed harmless through a

13     demonstration that the accused's ability to prepare his or her Defence

14     was not materially impaired.  The Prosecution has not met its burden in

15     this regard.  In light of the prejudice suffered, the Appeals Chamber

16     grants Coric's appeal, in part, reverses the Trial Chamber 's finding on

17     his role in the JCE as Minister of the Interior as of 10 November 1993,

18     and vacates his convictions in relation to his responsibility as Ministry

19     of the Interior based on JCE liability.

20             I now turn to the challenges regarding admissibility and weight

21     of the evidence as well as witness credibility.

22             Prlic and Praljak contend that the Trial Chamber erred when it

23     admitted and relied on extracts of Ratko Mladic's diaries, while denying

24     them the opportunity to reopen their case or tender evidence in response.

25     Stojic adds that this constituted uncorroborated and untested hearsay


Page 893

 1     evidence.  The Appeals Chamber finds that they have not demonstrated that

 2     the Trial Chamber abused its discretion in admitting the extracts.  Prlic

 3     never unconditionally requested that his case be reopened, and, in any

 4     event, the Trial Chamber expressly permitted him to admit evidence to

 5     rebut these diary extracts, which he did.  Praljak was likewise offered

 6     an opportunity to challenge these extracts.  Neither Prlic, nor Praljak,

 7     nor Stojic, show that no reasonable trier of fact could have relied on

 8     this evidence.  Their arguments are dismissed.

 9             Prlic, Stojic, Praljak, and Coric also contest decisions

10     pertaining to the admission or assessment of evidence, including with

11     regard to witness credibility and Praljak's own testimony.  The Appeals

12     Chamber finds that they fail to show any error.  With respect to

13     Praljak's claim that the Trial Chamber failed to explain what parts of

14     his testimony it found credible or not credible and why, the Appeals

15     Chamber finds that he does not demonstrate how the lack of a more

16     detailed discussion would invalidate the Trial Judgement and therefore

17     dismisses this challenge accordingly.

18             I will now turn to the legal requirements for grave breaches of

19     the Geneva Conventions.

20             The Appeals Chamber reverses proprio motu the Trial Chamber's

21     conclusion that an international armed conflict between the HVO and the

22     Bosnian Muslim army, the ABiH, only existed where active combat was

23     taking place.  The Appeals Chamber recalls that the temporal and

24     geographic scope of an international armed conflict extends beyond the

25     exact time and place of hostilities, and considers that the Trial


Page 894

 1     Chamber's finding of an international armed conflict in specific parts of

 2     the Bosnian territory were sufficient for the grave breaches regime to be

 3     applied to crimes committed elsewhere in Bosnia and Herzegovina until the

 4     end of the armed conflict, so long as the necessary nexus to the armed

 5     conflict was established.

 6             With regard to the Trial Chamber's finding of a state of

 7     occupation, the Appeals Chamber considers that the Trial Chamber

 8     appropriately examined whether a state of occupation existed in the

 9     relevant municipalities at the time certain crimes were committed against

10     protected persons in and protected property on occupied territory.  The

11     Appeals Chamber considers that occupation is a question of fact that

12     needs to be examined on a case-by-case basis.  The Appeals Chamber

13     further considers that a power can, by proxy, exercise the authority

14     necessary for occupation through de facto, organised and hierarchically

15     structured groups.  There were numerous factors indicating that Croatia,

16     through the HVO, had actual authority over the relevant municipalities

17     and the Appeals Chamber finds that Prlic, Stojic, Praljak, Petkovic and

18     Coric have failed to show any error by the Trial Chamber in reaching this

19     conclusion.

20             The Trial Chamber also found that two locations in Vares

21     municipality were occupied after 23 October 1993, and the Prosecution

22     concedes that occupation was not proven at the time that certain property

23     was destroyed and appropriated in these locations.  The Appeals Chamber

24     thus vacates the Defence appellants' conviction for extensive destruction

25     and appropriation of property insofar as these incidents are concerned.


Page 895

 1             The Trial Chamber further found that the HVO detained two

 2     categories of Muslim men who benefitted from the overarching protection

 3     of Geneva Convention IV, rather than being prisoners of war receiving the

 4     different protections under Geneva Convention III.

 5             First, with respect to the Muslim members of the HVO, Stojic,

 6     Praljak, Petkovic and Coric allege that war crimes cannot be committed by

 7     soldiers against members of their own military force.  The Appeals

 8     Chamber considers that in this case the Trial Chamber correctly took into

 9     account the allegiance of Muslim HVO members rather than merely

10     considering their nationality.  Since the detaining authority's view of

11     the victims' allegiance is a relevant factor in this assessment, the

12     Appeals Chamber finds that no error has been demonstrated.

13             Second, with respect to Muslim men of military age, Praljak,

14     Petkovic, Coric, and Pusic submit that the Trial Chamber erred in finding

15     that such men were not members of the armed forces.  They refer to

16     Bosnian law regarding reserve forces as well as a general mobilisation

17     order.  The Trial Chamber duly considered these arguments at trial.  The

18     Appeals Chamber further finds that a reasonable trier of fact could have

19     concluded that the HVO failed to carry out individualised assessments of

20     military-aged Muslim men within a reasonable time as required by law.

21     Moreover, the Trial Chamber made findings demonstrating that such men

22     were arrested en masse together with Muslim women, children, and the

23     elderly, and that all Muslims were detained and treated in the same

24     manner, irrespective of their status.  The challenges to these findings

25     are dismissed.


Page 896

 1             Petkovic finally submits that the detention was necessary for

 2     security reasons and therefore justified under Geneva Convention IV.  The

 3     Appeals Chamber observes that such a detention requires an individualised

 4     assessment that each civilian poses a particular security risk.  The

 5     Trial Chamber concludes that the arrests were not justified, and that

 6     Petkovic's orders to arrest these groups of Muslim men also ran afoul of

 7     Geneva Convention IV.  Petkovic has not shown that the Trial Chamber

 8     erred in reaching these conclusions.

 9             I now turn to the underlying crimes for which the Defence

10     appellants were convicted.  Before doing so, I note that Judge Liu

11     dissents from all portions of the Judgement dealing with the unlawful

12     infliction of terror on civilians as a violation of the laws or customs

13     of war because he is of the view that the Tribunal does not have

14     jurisdiction over this crime and that the elements of this offence, as

15     set out in the Judgement, do not adequately define a criminal charge.

16             Praljak appeals the Trial Chamber's finding that the HVO unlawful

17     imprisoned more than 1.000 Muslim civilians in houses in Prozor

18     municipality and held them in harsh and overcrowded conditions.  He

19     argues that some Muslims might have gone to the houses voluntarily, that

20     their relocation was necessary to ensure their safety, and that, although

21     restricted, they still enjoyed some freedom of movement and were not

22     detained.  The Appeals Chamber dismisses his first two contentions, which

23     ignore the extent of the evidence relied upon by the Trial Chamber or

24     otherwise failed to show that no reasonable trier of fact could have

25     reached the same conclusion.  With respect to his third contention, the


Page 897

 1     Appeals Chamber recalls that imprisonment and unlawful confinement can

 2     occur each when civilians are held in houses without guards or where they

 3     have some freedom of movement.  In light of the findings that the HVO

 4     soldiers and military police arrested civilians, brought them to the

 5     houses, and remained present in these locations, the Appeals Chamber

 6     finds no error in the conclusion that these civilians were imprisoned and

 7     unlawfully confined.  Even if their internment had been a necessary

 8     restriction on their movement under Geneva Convention IV, this would have

 9     been subject to strict rules and requirements, which the HVO failed to

10     respect, thereby belying the true nature of the detention.  Praljak's

11     appeal is, therefore, dismissed.

12             A month into this detention, the HVO forcibly removed and

13     transferred Muslim women, children, and elderly persons, according to the

14     Trial Chamber.  Praljak submits that the Trial Chamber wrongly found that

15     they were forced to leave, instead of considering that they may have left

16     by choice, and that in any event the removal may have been necessary for

17     security or military reasons.  The Trial Chamber found that HVO soldiers

18     used trucks to transfer these civilians, fired into the air to force the

19     Muslims to get onto the trucks, and later forced them to walk on foot

20     under military escort.  Praljak fails to demonstrate any error in these

21     findings.  As for the necessity of relocating civilians, the Appeals

22     Chamber recalls that the displacement of a population cannot be justified

23     where it is caused by a humanitarian crisis resulting from the accused's

24     own unlawful activity.  The Trial Chamber found that Praljak shared

25     responsibility for the harsh conditions of detention, that the transfer


Page 898

 1     took place when there was no fighting in the area, and that there was no

 2     possibility of return.  The Appeals Chamber identifies no errors in these

 3     findings and rejects Praljak's appeal.

 4             The Appeals Chamber now turns to the appeals concerning the

 5     wanton destruction of cities or towns or villages, or devastation not

 6     justified by military necessity.

 7             The Trial Chamber found that throughout the day on 8

 8     November 1993 an HVO tank fired at the old bridge of Mostar, rendering it

 9     on the verge of collapse by the evening.  The Trial Chamber also found

10     that the old bridge was essential for combat activities, and that at the

11     time of attack it was a military target, given that its destruction would

12     cut off practically all possibilities for the ABiH to continue its supply

13     operations.  The destruction of the old bridge resulted in virtually

14     total isolation of certain residents and had a significant psychological

15     impact on the Muslim population of Mostar, and the Trial Chamber

16     therefore concluded that the impact of the destruction was

17     disproportionate to the concrete and direct military advantage expected.

18     The Trial Chamber also found that the HVO destroyed the old bridge in

19     order to sap the morale of the Muslim population and therefore concluded

20     that the HVO committed wanton destruction not justified by military

21     necessity.

22             Stojic, Praljak, and Petkovic challenge the Trial Chamber's

23     findings concerning this event.  Stojic alleges that the Trial Chamber

24     focussed on actual harm rather than reasonably anticipated harm, failed

25     to analyse the harm caused in terms of tangible injuries, and should have


Page 899

 1     placed more weight on the old bridge's crucial importance as a military

 2     objective.  Praljak and Petkovic also submit that the Trial Chamber erred

 3     in assessing proportionality.  The Prosecution responds that Stojic,

 4     Praljak and Petkovic have not shown an error, that the Trial Chamber did

 5     not give insufficient weight to the anticipated military advantage, and

 6     that the Trial Chamber appropriately considered that the HVO's primary

 7     aim was to cause psychological and physical harm of the population.  The

 8     Appeals Chamber finds, Judge Pocar dissenting, that since the old bridge

 9     was a military target at the time of the attack and thus its destruction

10     offered a definite military advantage, it cannot be considered in and of

11     itself as wanton destruction not justified by military necessity.  In the

12     absence of any destruction of property not justified by military

13     necessity in the Trial Chamber's legal findings, the Appeals Chamber

14     concludes, Judge Pocar dissenting, that a requisite element of the crime

15     was not satisfied and therefore overturns the finding that in this case

16     the Prosecution proved that destroying the old bridge constituted the

17     crime of wanton destruction of cities, towns or villages, or devastation

18     not justified by military necessity.

19             The Trial Chamber relied on these findings as a basis to find

20     that the HVO committed persecution and unlawful infliction of terror on

21     civilians when it destroyed the old bridge.  At the appeal hearing, the

22     Appeals Chamber invited submissions as to what impact an error on wanton

23     destruction would have on these other two crimes.  In light of the Trial

24     Chamber's finding that the HVO had a military interest in destroying the

25     old bridge and that it was a military target, the Appeals Chamber finds


Page 900

 1     that no reasonable trier of fact could have found that the HVO forces had

 2     the specific intent to discriminate or the specific intent to commit

 3     terror when it destroyed the old bridge.  The Appeals Chamber reverses,

 4     Judge Pocar dissenting, the Trial Chamber's finding that the destruction

 5     of the old bridge constituted persecution and the unlawful infliction of

 6     terror on civilians and acquits the Defence appellants of these crimes in

 7     relation to the old bridge.  The Appeals Chamber also considers that

 8     these conclusions warrant the reversal of the Trial Chamber's further

 9     finding that Prlic knew about HVO crimes in destroying the old bridge and

10     contributed to the JCE by attempting to minimise or deny this criminal

11     destruction.

12             The Trial Chamber further found that the HVO laid siege to east

13     Mostar from June 1993 to April 1994, confining the population to a

14     cramped enclave.  The population could not leave east Mostar and was

15     forced to endure extremely harsh conditions without food, water,

16     electricity or appropriate medical care, while the HVO subjected east

17     Mostar to intense and uninterrupted shelling, engaged in a campaign of

18     sniper fire, deliberately targeted members of international

19     organisations, and hindered or blocked humanity aid.  The Trial Chamber

20     concluded that these actions were specifically intended to discriminate

21     against the Muslims of Mostar municipality and to inflict terror on the

22     civilian population.  Stojic, Praljak, and Petkovic contest these and

23     related findings.  They fail to demonstrate any error by the Trial

24     Chamber.  The Appeals Chamber dismisses their challenges.

25             The Trial Chamber also found that, during attacks, the HVO


Page 901

 1     targeted and destroyed or significantly damaged ten mosques in east

 2     Mostar, as well as Muslim property in Prozor municipality.  The Trial

 3     Chamber, however, overlooked its finding that these incidents did not

 4     qualify as a grave breach of the Geneva Conventions, and neglected to

 5     enter convictions for wanton destruction as a violation of the laws or

 6     customs of war.  This was an error, and the Appeals Chamber allows the

 7     Prosecution's ground of appeal in this respect but declines to enter new

 8     convictions on appeal.

 9             With respect to the attacks in Gornji Vakuf municipality in

10     January 1993, the Trial Chamber found that the HVO attacked four

11     villages, including Dusa, which the HVO shelled indiscriminately, thereby

12     killing seven civilians.  The Trial Chamber found that the attack on Dusa

13     was indiscriminate because the HVO:  (1) used weapons - more

14     specifically, "shells" - the nature of which makes it impossible to

15     distinguish military from civilian targets; and (2) made no efforts to

16     allow the civilian population to flee.  Stojic and Praljak argue that the

17     Trial Chamber erred when concluding that shells are inherently

18     indiscriminate and in this regard that the house destroyed by the HVO in

19     Dusa was a legitimate military target.  The Appeals Chamber finds that

20     the Trial Chamber's conclusion in relation to the nature of shells was

21     not based on any evidence that the weapons used during the attack were

22     inevitably indiscriminate.  Absent such a basis, the Appeals Chamber

23     reverses the finding that "shells" are inherently indiscriminate.  The

24     Trial Chamber's remaining finding is insufficient for a reasonable trier

25     of fact to conclude that the attack on Dusa was indiscriminate.  Because


Page 902

 1     the Trial Chamber's reasoning with respect to Dusa applied equally to the

 2     attacks on the other three villages, the Appeals Chamber also reverses

 3     the finding that these attacks were indiscriminate.

 4             The Trial Chamber relied on the indiscriminate nature of this

 5     attack to substantiate its finding that the HVO forces had the mens rea

 6     for murder and wilful killing.  The Prosecution argues that the Trial

 7     Chamber reasonably rejected the argument that the HVO aimed at legitimate

 8     military targets, and if the attack was not indiscriminate, then it was a

 9     deliberate attack on civilians.  Given the combat activity and the

10     position of the defenders of the village, the Appeals Chamber finds that

11     no reasonable trier of fact could have concluded that the HVO forces in

12     Dusa possessed the mens rea for murder and wilful killing.  The Trial

13     Chamber's factual error occasioned a miscarriage of justice and the

14     Appeals Chamber reverses the subsequent findings and convictions in

15     relation to the killings in Dusa.  The Appeals Chamber also reverses the

16     Trial Chamber's findings on the wanton destruction of property during the

17     attacks on the four villages on the same day and the related convictions

18     for persecution.

19             The reversal of the findings in relation to the Dusa killings

20     also impacts the Trial Chamber's conclusion that the HVO engaged in a

21     clear pattern of murderous conduct from January until June 1993, when the

22     siege of east Mostar started.  The Appeals Chamber therefore considers

23     that the Trial Chamber's remaining findings establish that wilful killing

24     and murder were part of the JCE's common criminal purpose only as of

25     June 1993 and not from January 1993 until June 1993.  Consequently, the


Page 903

 1     Appeals Chamber reverses the Defence appellants' conviction for the

 2     murder of two unarmed men in April 1993 in Toscanica, Prozor

 3     municipality, as being outside the scope of the JCE.  The Appeals Chamber

 4     also finds that this reversal impacts the reasonableness of the Trial

 5     Chamber's conclusion that Prlic could have foreseen the possible

 6     commission of these crimes and other murders that took place in

 7     April 1993 and willingly took this risk and reverses this conclusion.

 8             The Trial Chamber also found that following these attacks on Dusa

 9     and other villages, HVO soldiers set fire to the houses of Bosnian

10     Muslims, illegally arrested and detained civilians, and forcibly removed

11     and unlawfully displaced women, children and elderly persons.  Praljak

12     appeals against these findings.  However, he fails to substantiate his

13     allegations of error and his arguments are therefore dismissed.

14             I now turn to the Trial Chamber's findings on the JCE and the

15     responsibility of the Defence appellants pursuant to the first and third

16     categories of this mode of liability.  The Appeals Chamber's

17     considerations of these grounds of appeal amounts to the majority of the

18     appeal Judgement.  For the sake of brevity, I will focus only on key

19     outcomes.  Before doing so, I note that, in light of his dissenting

20     opinion on the scope of the JCE charged by the Prosecution, Judge Pocar

21     does not join the majority opinion with respect to its findings that

22     Counts 2, 3, and 21 constitute JCE I crimes.

23             I first address the Defence appellants' contentions concerning

24     the existence of JCE liability in customary international law.  Prlic,

25     Praljak, Coric, and Pusic maintain that there are cogent reasons for the


Page 904

 1     Appeals Chamber to depart from its prior jurisprudence that JCE, in all

 2     its forms, was a mode of liability firmly established in customary

 3     international law at the relevant time.  They have failed to demonstrate

 4     any such cogent reasons and their contentions are dismissed.

 5             Turning next to how the Trial Chamber described the ultimate

 6     purpose of the JCE, Prlic, Stojic, Praljak, and Pusic challenge the Trial

 7     Chamber's finding that this ultimate purpose was shared by Franjo Tudjman

 8     and other leaders and was aimed at setting up a Croatian entity that

 9     reconstituted earlier borders and that facilitated the reunification of

10     the Croatian people.  The Appeals Chamber finds that they have not

11     demonstrated that the Trial Chamber misinterpreted the relevant evidence,

12     disregarded any evidence, or otherwise erred in reaching its conclusion.

13     They, along with Petkovic, also allege a variety of factual errors

14     underpinning the Trial Chamber's conclusion concerning the ultimate

15     purpose of the joint criminal enterprise.  Their arguments are lacking

16     merit and are dismissed.

17             All six Defence appellants challenge the Trial Chamber's

18     conclusion that the common criminal purpose shared by the JCE members was

19     the "domination by Croats of the Croatian Republic of Herceg-Bosna

20     through ethnic cleansing of the Muslim population."  In particular, they

21     allege errors with regards to this definition of the common criminal

22     purpose, the Trial Chamber's approach to its scope and subsequent

23     expansion, and the findings on the stages of its implementation.  Despite

24     the extent of their appeals, none of the Defence appellants demonstrate

25     any error of fact or law in the Trial Chamber's consideration of these


Page 905

 1     issues.

 2             Prlic challenges the Trial Chamber's finding that he was a

 3     principal member of the JCE and that he significantly contributed to it

 4     from January 1993 to April 1994, including through his involvement in

 5     blocking humanitarian aid as well as in the mass arrests of Muslims, the

 6     participation in planning the attack on Gornji Vakuf municipality, the

 7     eviction and movement of the population, and the concealment of crimes.

 8     Prlic submits that the Trial Chamber erred with respect to his powers in

 9     both civilian and military matters, the ways in which he significantly

10     contributed to the JCE, his intent, and his ability to foresee crimes not

11     within the scope of the JCE and willingness to accept this risk.  The

12     Appeals Chamber finds no such error, and dismisses his appeal in this

13     respect.

14             Stojic alleges that the Trial Chamber erred in finding that he

15     commanded and had effective control over the HVO and its military police,

16     that he failed to prevent and punish their crimes, that he used the HVO

17     and its military police to commit crimes, and that he significantly

18     contributed to the JCE.  Stojic also challenges the Trial Chamber's

19     findings on his knowledge of crimes in the various municipalities and

20     detention centres.  Having examined his arguments, the Appeals Chamber

21     finds that he fails to establish that the Trial Chamber reached its

22     conclusions in error.  However, the Appeals Chamber grants his appeal of

23     the finding that he learned and accepted that civilians, who were

24     relocated from Prozor Secondary School, were being detained in Ljubuski

25     prison in July 1993, but considers that this does not affect his overall


Page 906

 1     responsibility for these crimes as a member of the JCE.  The Appeals

 2     Chamber also finds that the Trial Chamber failed to provide a reasoned

 3     opinion on Stojic's intent for the crime of unlawful infliction of terror

 4     on civilians but concludes that Stojic fails to show how this error

 5     invalidates his conviction for this crime.  Nor has Stojic demonstrated

 6     any error in the Trial Chamber's findings that he specifically intended

 7     to discriminate against the Muslim population, intended to commit crimes

 8     in various municipalities and detention centres, and willingly took the

 9     risk that rape, sexual assault, and thefts would take place.  His appeals

10     are dismissed.

11             Praljak appeals the findings that he wielded command authority

12     over the HVO and its military police, that he was a conduit between the

13     Croatian government and the HVO in furtherance of the JCE, and that he

14     significantly contributed to the JCE with the requisite intent.  He also

15     challenges the Trial Chamber's conclusions concerning his involvement,

16     knowledge, and intent for crimes committed in various municipalities and

17     detention centres.  The Trial Chamber stated that when Praljak

18     relinquished his functions within the HVO Main Staff on 9 November 1993,

19     he ceased to be a member of the JCE.  The Trial Chamber, however, failed

20     to provide a reasoned opinion as to whether it convicted him for crimes

21     occurring after 9 November 1993, in particular, the destruction of seven

22     mosques in east Mostar that could not reasonably be found to have

23     occurred before this date, and also sniping incidents committed in east

24     Mostar the following year.  The Appeals Chamber finds that Praljak cannot

25     be held responsible for crimes occurring after 9 November 1993.  The


Page 907

 1     Appeals Chamber also finds that the Trial Chamber failed to provide a

 2     reasoned opinion on Praljak's intent for the crime of unlawful infliction

 3     of terror on civilians but concludes that Praljak fails to show how this

 4     error invalidates his conviction for this crime.  The Appeals Chamber

 5     also grants Praljak's appeal that no reasonable trier of fact could have

 6     concluded that he facilitated the murders and property destruction that

 7     took place in Stupni Do, Vares municipality, on 23 October 1993.

 8     Praljak, however, has not demonstrated an error in the finding that he

 9     participated in the planning and direction of the operations in Vares

10     municipality, and the Appeals Chamber affirms his contribution in this

11     regard.  The remainder of Praljak's challenges are dismissed.

12             Petkovic contends that the Trial Chamber erred with regard to his

13     powers and functions, his involvement in crimes committed in

14     municipalities and detention centres, his intent, and his ability to

15     foresee crimes not within the scope of the JCE and willingness to accept

16     this risk, as well as his responsibility for crimes committed by certain

17     groups.  With respect to the murders and property destructions in Stupni

18     Do, as well as arrests of Muslim men in Vares town, the Appeals Chamber

19     finds that there was insufficient support for a reasonable trier of fact

20     to conclude that Petkovic directly contributed to these crimes.  This has

21     no impact, however, on the Trial Chamber's findings that Petkovic was

22     informed of these crimes, failed to take measures against the

23     perpetrators, launched a fake investigation with regard to Stupni Do, and

24     accepted these crimes.  The Appeals Chamber also finds that the Trial

25     Chamber erroneously concluded without referring to any evidence that


Page 908

 1     Petkovic knew that the Bruno Busic Regiment committed crimes in Gornji

 2     Vakuf municipality in January 1993, even though there was sufficient

 3     support for its conclusion that Petkovic learned of the regiment's crimes

 4     three months later.  The Appeals Chamber reverses the finding that

 5     Petkovic contributed to the regiment's crimes by ordering its

 6     redeployment while knowing of the crimes it committed before April 1993.

 7     Finally, the Appeals Chamber grants Petkovic's appeal as to his

 8     responsibility based on the first category of JCE responsibility for the

 9     destruction of two mosques that occurred before the Trial Chamber found

10     that destruction or wilful damage to religious institutions was part of

11     the JCE's common criminal purpose.  The findings of the Trial Chamber,

12     however, support responsibility for the destruction of these mosques

13     pursuant to the third category of JCE responsibility, and the Appeals

14     Chamber finds that Petkovic is so responsible.  Petkovic's appeal is

15     otherwise dismissed.

16             Coric challenges the Trial Chamber's findings related to his JCE

17     contribution, as well as his mens rea, that is, both his intent and his

18     ability to foresee crimes not within the scope of the JCE combined with

19     his willingness to take the risk.  The Appeals Chamber observes that he

20     repeats arguments that were unsuccessful at trial without any

21     demonstration that their rejection by the Trial Chamber constitutes an

22     error warranting appellate intervention.  Coric also regularly fails to

23     identify the findings that he purports to contest.  He misrepresents the

24     Trial Chamber's factual findings and puts forward arguments that are

25     undeveloped, irrelevant or obscure.  With respect to his submissions that


Page 909

 1     are in accordance with the standard of appellate review, the Appeals

 2     Chamber finds that they fail to demonstrate an error.  In particular, he

 3     has not demonstrated any error in the Trial Chamber's conclusion

 4     concerning his powers, his involvement in HVO detention centres, and his

 5     involvement in other crimes committed in municipalities.  Coric's

 6     challenges are, therefore, dismissed.

 7             Pusic appeals against the Trial Chamber's finding that he was a

 8     member of the JCE from April 1993 until April 1994, which the Trial

 9     Chamber based on his powers and contributions to crimes in the HVO

10     network of detention centres, through prisoner exchanges and in various

11     municipalities, his spreading of false information in relation to HVO

12     crimes and his intent.  The Appeals Chamber finds merit in some aspects

13     of his appeal and accordingly overturns three findings of the Trial

14     Chamber's with respect to Pusic's contribution to the joint criminal

15     enterprise.  Nevertheless, the Appeals Chamber upholds a majority of the

16     Trial Chamber's findings, including those which formed the bedrock for

17     the Trial Chamber's conclusion that he significantly contributed to the

18     JCE.  These related to his role in organising the release of Muslim

19     detainees to ABiH-held territories or to third countries and his role as

20     the link between the network of HVO detention centres and the most

21     important JCE members.  The Appeals Chamber finds that Pusic has failed

22     to demonstrate an error in the Trial Chamber's conclusion that he

23     contributed significantly to the JCE and intended the crimes which formed

24     part of it.

25             Turning now to the Prosecution's appeal, the Prosecution argues


Page 910

 1     that the Trial Chamber erred in assessing the appellants' responsibility

 2     pursuant to the third category of JCE responsibility.  All six Defence

 3     appellants respond that these acquittals were appropriate.  The Appeals

 4     Chamber considers, Judge Liu dissenting, that a close examination of the

 5     Trial Chamber's Judgement reveals that the Trial Chamber frequently used

 6     language indicating the use of an incorrect foreseeability standard for

 7     this category of JCE responsibility.  In light of the context and manner

 8     in which the Trial Chamber used the terminology in question, at least

 9     with respect to the incidents specifically challenged by the Prosecution,

10     the Appeals Chamber finds, Judge Liu dissenting, that when assessing

11     foreseeability, the Trial Chamber applied a higher threshold than

12     required by correct legal standard.  This was an error of law.  The

13     Appeals Chamber also finds, Judge Liu dissenting, that the Trial Chamber

14     committed an error of law by failing to provide a reasoned opinion for

15     why it found Prlic, Stojic, Praljak, Petkovic, and Coric not responsible

16     for numerous crimes pursuant to the third category of joint criminal

17     enterprise.

18             Collectively, these errors concern Prlic's alleged responsibility

19     for 26 separate incidents of murder, sexual violence, theft, and

20     destruction of mosques; Stojic's alleged responsibility for 30 such

21     incidents; Praljak's alleged responsibility for 32 such incidents;

22     Petkovic's alleged responsibility for 18 such incidents, with the

23     exception of destruction -- expect none for the destruction of mosques;

24     and finally, Coric's alleged responsibility for 31 such incidents; and

25     Pusic's alleged responsibility for 35 such incidents.


Page 911

 1             The Prosecution requests that the Appeals Chamber correct these

 2     errors, engage in a de novo review, find that requisite elements are met,

 3     overturn the acquittals, convict the Defence appellants, and increase

 4     their sentences accordingly.  In the alternative, the Prosecution asks

 5     the Appeals Chamber to exercise its discretion to remand this issue to a

 6     Bench of the Tribunal to apply the correct legal standards to the trial

 7     records.  The Appeals Chamber observes that if it were to conduct its own

 8     review of the relevant evidence and factual findings of the Trial

 9     Chamber, it would have to make findings on each of the six Defence

10     appellants' responsibility for the numerous incidents, involving four

11     different types of crimes that occurred in six municipalities and three

12     detention centres over a period of 11 months.  Moreover, the evidence

13     concerning mens rea is of a circumstantial nature pertaining to the

14     conduct, knowledge and intent over more than a year in various locations.

15     Conducting such an analysis would amount to a re-evaluation of the entire

16     trial record and in effect require the Appeals Chamber to decide the case

17     anew.  However, an appeal is not a trial de novo and the Appeals Chamber

18     cannot be expected to act as a primary trier of fact.  The Appeals

19     Chamber accordingly declines to determine whether the elements of the

20     third category of JCE liability are met with respect to the incidents at

21     issue.  Moreover, taking into account, inter alia, the protracted length

22     of the proceedings which have been ongoing for more than 13 years, with

23     sentences ranging from 10 to 25 years of imprisonment, the Appeals

24     Chamber also declines to order a retrial or remit limited issues for

25     further proceedings.


Page 912

 1             With respect to certain incidents concerning the killing of

 2     persons who were detained, the Appeals Chamber finds, Judge Liu

 3     dissenting, that the Prosecution has shown that all reasonable doubt as

 4     to Prlic's and Petkovic's guilt under the third category of JCE

 5     responsibility has been eliminated and that no reasonable trier of fact

 6     could have acquitted them for these crimes.  Thus, the Trial Chamber

 7     committed errors of fact.  The Appeals Chamber declines to enter new

 8     convictions in this regard on appeal.

 9             The Prosecution also alleges that the Trial Chamber failed to

10     adjudicate the superior responsibility of Prlic, Stojic, Praljak,

11     Petkovic and Coric who respond either that there was no such error or

12     that it would be unfair to remedy the error by entering a conviction on

13     appeal.  The Appeals Chamber recalls that when an accused is charged

14     cumulatively under both Articles 7(1) and 7(3) of the Statute, the Trial

15     Chamber is legally required to make findings as to whether the accused

16     incurred superior responsibility.  The Appeals Chamber finds that the

17     Trial Chamber erred by failing to make such findings on whether Prlic,

18     Stojic, Praljak, Petkovic, and Coric bear superior responsibility for

19     failing to punish certain crimes.  The Appeals Chamber grants this aspect

20     of the Prosecution's appeal.  However, it declines to embark on a de novo

21     determination of their superior responsibility or to order a remittance

22     or retrial of this case for that purpose.

23             The Trial Chamber did find Coric responsible as a superior for

24     crimes committed in Prozor municipality in October 1992, specifically for

25     the destruction of around 75 Muslim homes and other property as well as


Page 913

 1     the theft of vehicles.  Coric disputes the Trial Chamber's assessment of

 2     the evidence as well as its findings that he exercised effective control

 3     over the perpetrators, knew or had reason to know of the crimes, and

 4     failed to punish his subordinates.  The Appeals Chamber finds that Coric

 5     has not demonstrated any error by the Trial Chamber and dismisses his

 6     appeal accordingly.

 7             Coric also alleges that the Trial Chamber erred by entering

 8     convictions cumulatively for grave breaches of the Geneva Conventions and

 9     violations of the laws or customs of war, as well as for war crimes and

10     crimes against humanity.  The Appeals Chamber finds that he misinterprets

11     the well-established legal standard that convictions can be entered where

12     there is a materially distinct element for the same set of crimes, and

13     that he fails to demonstrate any error by the Trial Chamber in entering

14     such convictions in this case.  His argument is dismissed.

15             Sentencing.

16             Turning now to sentencing, all parties, except for Praljak,

17     appealed.

18             The Appeals Chamber finds merit in the Prosecution's argument

19     that the Trial Chamber failed to take into account Coric's superior

20     responsibility in sentencing.  The Appeals Chamber dismisses all other

21     grounds of appeal raised by the Prosecution as well as by the Defence

22     appellants concerning gravity, aggravating circumstances, mitigating

23     circumstances, and comparisons to sentencing practices in the former

24     Yugoslavia and to other cases.

25             As for the calculation of time already served, Stojic, Petkovic,


Page 914

 1     Coric and Pusic submit that the Trial Chamber wrongly excluded their time

 2     spent on provisional release, including while being under home

 3     confinement or receiving medical treatment.  The Appeals Chamber recalls

 4     that Rule 101(C) of the Rules provides that credit shall be given for the

 5     period "during which the convicted person was detained in custody"

 6     pending surrender, trial or appeal.

 7             The Appeals Chamber considers, Judge Liu dissenting in part, that

 8     the provisional release imposed on Stojic, Petkovic, Coric, and Pusic

 9     fall short of being tantamount to detention in custody and therefore

10     rejects their submissions that the Trial Chamber erred when it excluded

11     the periods of their provisional release when calculating the time that

12     they already served while being detained in custody.

13             Finally, with regard to the impact of the Appeals Chamber's

14     findings on the sentence imposed by the Trial Chamber, the Appeals

15     Chamber has taken into account the extent to which it has reversed

16     certain convictions and findings of culpability for all six Defence

17     appellants.  All six, however, remain convicted of numerous and very

18     serious crimes.

19             I shall now read out the full operative text of the Appeals

20     Chamber disposition.

21             For the foregoing reasons, the Appeals Chamber,

22             Pursuant to Article 25 of the Statute and Rules 117 and 118 of

23     the Rules;

24             Noting the respective written submissions of the parties and the

25     arguments presented at the appeal hearing on 20 to 24 and 27 to 28 of


Page 915

 1     March of this year;

 2             Sitting in open session;

 3             Mr. Prlic, will you please stand.

 4             With respect to Jadranko Prlic,

 5             Dismisses Prlic's appeal in its entirety;

 6             Reverses, as a result of granting Stojic's subground of appeal

 7     45.1 and Praljak's ground of appeal 12, Prlic's convictions as a

 8     participant in the joint criminal enterprise for, first, persecution,

 9     murder and inhumane acts as crimes against humanity and wilful killing

10     and inhumane treatment as grave breaches of the Geneva Conventions with

11     regard to the killing of seven civilians in Dusa, Gornji Vakuf

12     municipality.  That's Counts 1, 2, 3, 15, and 16 all in part.  Secondly,

13     murder, as a crime against humanity and wilful killing as a grave breach

14     of the Geneva Convention for the killing of two unarmed men in Toscanica,

15     Prozor municipality.  That is Counts 2 and 3, both in part.  And three,

16     murder, as a crime against humanity and wilful killing as a grave breach

17     of the Geneva Conventions for the murders linked to detentions committed

18     in Jablanica municipality in April 1993, Counts 2 and 3, both in part;

19             Reverses, as a result of allowing the additional ground of appeal

20     submitted by, variously, Prlic, Stojic, Praljak, and Coric in response to

21     the Prosecution's ground of appeal 3, Prlic's convictions as a

22     participant in the JCE for, first, persecution as a crime against

23     humanity in relation to destruction during attacks of houses in Gornji

24     Vakuf municipality on 18 January 1993.  That is Count 1, in part.  And,

25     two, Judge Pocar dissenting, persecution as a crime against humanity and


Page 916

 1     unlawful infliction of terror on civilians as a violation of the laws or

 2     customs of war in relation to the destruction of the old bridge of

 3     Mostar, Counts 1 and 25, both in part;

 4             Reverses proprio motu Prlic's conviction as a participant in a

 5     JCE for extensive destruction of property, not justified by military

 6     necessity and carried out unlawfully and wantonly as a grave breach of

 7     the Geneva Conventions, in relation to the destruction of houses and

 8     buildings in Vares municipality, Count 19, in part;

 9             Affirms, Judge Liu dissenting with respect to Count 25 and

10     Judge Pocar dissenting in part with respect to Counts 2, 3, and 21, the

11     remainder of Prlic's convictions under Counts 1 to 13, 15 to 16, 18 to

12     19, 21 to 25;

13             Allows, Judge Liu dissenting, the Prosecution's ground of appeal

14     1(C) concerning Prlic's responsibility as a participant in a JCE for the

15     incidents as set out in paragraphs 3079 and 3114 of this Judgement, but

16     declines to quash the acquittals in this regard, or to order a retrial or

17     a remittance;

18             Allows, Judge Liu dissenting, the Prosecution's ground of appeal

19     1(E) in part and finds, Judge Liu dissenting, that the Trial Chamber

20     incorrectly found Prlic not guilty for committing through his

21     participation in a JCE murder as a crime against humanity and wilful

22     killing as a grave breach of the Geneva Conventions with respect to the

23     killings of:  (1) a Muslim detainee in Dretelj prison on 16 July 1993; a

24     detainee in Vojno Detention Centre of 5 December 1993, Counts 2 and 3,

25     both in part, but declines to enter new convictions against him in this


Page 917

 1     regard;

 2             Allows the Prosecution's ground of appeal 2 concerning Prlic's

 3     superior responsibility for the incidents as set out in paragraphs 3134

 4     and 3151 of this Judgement, but declines to quash the acquittals in this

 5     regard or to order a retrial or a remittance;

 6             Allows the Prosecution ground of appeal 3 in part and finds that

 7     the Trial Chamber erred by failing to enter convictions for wanton

 8     destruction of cities, towns or villages, or devastation not justified by

 9     military necessity as a violation of the laws or customs of war with

10     respect to the destruction during attacks of, first, Muslim property in

11     Prozor municipality between May or June and early July 1993; and,

12     secondly, mosques in east Mostar, Mostar municipality, between June and

13     December 1993, Count 20, in part, but declines to enter new convictions

14     against Prlic in this regard;

15             Dismisses the Prosecution appeal concerning Prlic in all other

16     respects;

17             Affirms the sentence of 25 years of imprisonment, subject to

18     credit being given under Rule 101(C) of the Rules for the period he has

19     already spent in detention.

20             Mr. Prlic you may be seated.

21             Mr. Stojic, will you please stand.

22             With respect to Bruno Stojic,

23             Grants Stojic's subground of appeal 45.1 and reverses his

24     conviction as a participant in a JCE for persecution, murder, and

25     inhumane acts as crimes against humanity and wilful killings and inhumane


Page 918

 1     treatment as grave breaches of the Geneva Conventions with regard to the

 2     killing of seven civilians in Dusa, Gornji Vakuf municipality.  That's

 3     Counts 1, 2, 3, 15 and 16, all in part;

 4             Dismisses, Judge Liu dissenting in part and Judge Pocar

 5     dissenting in part, Stojic's appeal in all other respects;

 6             Reverses, as a result of granting of Stojic's subground of appeal

 7     45.1 and Praljak's ground of appeal 12, Stojic's conviction as a

 8     participant in a JCE for murder as a crime against humanity and wilful

 9     killing as a grave breach of the Geneva Convention for the killing of two

10     unarmed men in Toscanica, Prozor municipality, Counts 2 and 3, both in

11     part;

12             Reverses, as a result of allowing the additional grounds of

13     appeal submitted by, variously, Prlic, Stojic, Praljak and Coric in

14     response to the Prosecution's ground of appeal 3, Stojic's convictions as

15     a participant in a JCE for persecution as a crime against humanity in

16     relation to the destruction, during attacks, of houses in Gornji Vakuf

17     municipality on 18 January 1993, count 1, in part; and (2) Judge Pocar

18     dissenting, persecution as a crime against humanity and unlawful

19     infliction of terror on civilians as a violation of the laws or customs

20     of war in relation to the destruction of the old bridge of Mostar, Counts

21     1 and 25, both in part;

22             Reverses proprio motu Stojic's conviction as a participant in a

23     joint criminal enterprise for extensive destruction of property, not

24     justified by military necessity and carried out unlawfully and wantonly,

25     as a grave breach of the Geneva Conventions, in relation to the


Page 919

 1     destruction of houses and buildings in Vares municipality, Count 19, in

 2     part;

 3             Reverses proprio motu Stojic's conviction as a participant in a

 4     JCE, under JCE III responsibility, for murder as a crime against humanity

 5     and wilful killing as a grave breach of the Geneva Conventions with

 6     respect to the killings of detainees from the Heliodrom during forced

 7     labour or while being used as human shields, but affirms his convictions

 8     for the same crimes in relation to these killings under JCE I liability.

 9     That's Counts 2 and 3, both in part;

10             Affirms, Judge Liu dissenting with respect to Count 25 and

11     Judge Pocar dissenting with respect to Counts 2, 3, and 21, the remainder

12     of Stojic's convictions under Counts 1 to 13, 15 to 16, 18 to 19, 21 to

13     25;

14             Allows, Judge Liu dissenting, the Prosecution's ground of appeal

15     1(A) and 1(C) concerning Stojic's responsibility as a participant in a

16     joint criminal enterprise for incidents as set out in paragraphs 3018 and

17     3030 of this Judgement, but declines to quash the acquittals in this

18     regard or to order a retrial or a remittance;

19             Allows the Prosecution's ground of appeal 2 concerning Stojic's

20     superior responsibility for the incidents as set out in paragraphs 3134

21     and 3151 of this Judgement, but declines to quash the acquittals in this

22     regard or to order a retrial or a remittance;

23             Allows the Prosecution's ground of appeal 3 in part and finds

24     that the Trial Chamber erred by failing to enter convictions for wanton

25     destruction of cities, towns or villages, or devastation not justified by


Page 920

 1     military necessity as a violation of the laws or customs of war with

 2     respect to the destruction, during attacks, of, first, Muslim property in

 3     Prozor municipality between May or June or early July 1993; secondly,

 4     mosques in east Mostar, Mostar municipality, between June and 15

 5     November 1993.  That's Count 20, in part.  But declines to enter new

 6     convictions against Stojic in this regard;

 7             Dismisses the Prosecution's appeal concerning Stojic in all other

 8     respects;

 9             Affirms the sentence of 20 years of imprisonment, subject to

10     credit being given under Rule 101(C) of the Rules for the period he has

11     already spent in detention.

12             Mr. Stojic, you may be seated.

13             THE INTERPRETER:  Kindly slow down for the purposes of

14     interpretation.  Thank you.

15             JUDGE AGIUS:  Okay.  Thank you.  Sorry about that.  I will try to

16     slow down.

17             Mr. Praljak, thank you for standing.

18             With respect to Slobodan Praljak,

19             Grants ground of appeal 12 and reverses his conviction as a

20     participant in a JCE for persecution, murder, and inhumane acts as crimes

21     against humanity and wilful killing and inhumane treatment as grave

22     breaches of the Geneva Convention with regard to the killing of seven

23     civilians in Dusa, Gornji Vakuf municipality.  That's Counts 1, 2, 3, 15,

24     and 16, all in part;

25             Grants Praljak's subground of appeal 44.1 in part to the extent


Page 921

 1     that it concerns Praljak's responsibility as a participant in a JCE for

 2     the incidents as set out in paragraph 2003 of this Judgement;

 3             Dismisses Praljak's appeal in all other respects;

 4             Reverses, as a result of granting Stojic's subground of appeal

 5     45.1 and Praljak's ground of appeal 12, Praljak's convictions as a

 6     participant in a JCE for murder as a crime against humanity and wilful

 7     killing as a grave breach of the Geneva Conventions for the killing of

 8     two unarmed men in Toscanica, Prozor municipality;

 9             Reverses, as a result of allowing the additional grounds of

10     appeal submitted by, variously, Prlic, Stojic, Praljak, and Coric in

11     response to the Prosecution's ground of appeal 3, Praljak's convictions

12     as a participant in a JCE for, first, persecution as a crime against

13     humanity in relation to the destruction, during attacks, of houses in

14     Gornji Vakuf municipality on 18 January 1993.  That's Count 1, in part.

15     And (2), Judge Pocar dissenting, persecution as a crime against humanity

16     and unlawful infliction of terror on civilians as violation of the laws

17     or customs of war in relation to the destruction of the old bridge of

18     Mostar;

19             Reverses proprio motu Praljak's conviction as a participant in a

20     JCE for extensive destruction of property, not justified by military

21     necessity and carried out unlawfully and wantonly, as a grave breach of

22     the Geneva Conventions in relation to the destruction of houses and

23     buildings in Vares municipality, Count 19 in part;

24             Affirms, Judge Liu dissenting with respect to Count 25 and

25     Judge Pocar dissenting with respect to Counts 2, 3, and 21, the remainder


Page 922

 1     of Praljak's convictions under Counts 1 to 3, 6 to 13, 15 and 16, 18 and

 2     19, and 21 to 25;

 3             Allows, Judge Liu dissenting, the Prosecution's ground of appeal

 4     1(A) and 1(C) concerning Praljak's responsibility as a participant in a

 5     JCE for the incidents as set out in paragraphs 3018, 3030, 3079, and 3114

 6     of this Judgement, but declines to quash the acquittals in this regard,

 7     or to order a retrial or a remittance;

 8             Allows the Prosecution's ground of appeal 2 concerning Praljak's

 9     superior responsibility for the incidents as set out in paragraphs 3134

10     and 3151 of this Judgement, but declines to quash the acquittals in this

11     regard or to order a retrial or a remittance;

12             Allows the Prosecution's ground of appeal 3 in part and finds

13     that the Trial Chamber erred by failing to enter convictions for wanton

14     destruction of cities, towns or villages, or devastation not justified by

15     military necessity as a violation of the laws or customs of war with

16     respect to the destruction, during attacks, of:  (1) Muslim property in

17     Prozor Municipality between May or June and early July 1993; and (2)

18     mosques in East Mostar, Mostar Municipality, between June and November

19     1993 (Count 20 in part), but declines to enter new convictions against

20     Praljak in this regard;

21             Dismisses the Prosecution's appeal concerning Praljak in all

22     other respects;

23             Affirms the sentence of 20 years of imprisonment subject to

24     credit being given under Rule 101(C) of the Rules for the period he has

25     already spent in detention.


Page 923

 1             Mr. Praljak, you may be seated.

 2             THE APPELLANT PRALJAK:  Judges! Slobodan Praljak is not a war

 3     criminal.  I reject your judgement with contempt.

 4             JUDGE AGIUS:  Stop, please.  Please sit down.

 5             Mr. Petkovic, will you please stand.

 6             With respect to Milivoj Petkovic,

 7             Grants Petkovic's subground of appeal 5.2.2.4 in part and the

 8   Prosecution's ground of appeal 1 in part and reverses the Trial Chamber's

 9   findings that Petkovic was responsible as a participant in a JCE, under JCE --

10      THE APPELLANT PRLIC:  [Microphone not activated].  We have problem here.

11      Let's show little bit compassion.  He is not in good position here.

12      THE APPELLANT PRALJAK: [Interpretation] It is poison that I have taken.

13             MS. FAUVEAU-IVANOVIC:  Your Honour, our client said that he had

14     taken poison this morning.

15             JUDGE AGIUS:  Okay.  We suspend the -- we suspend -- please, the

16     curtains.

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)


Page 924

 1   (redacted)

 2                           --- Break taken at 11.44 a.m.

 3                           [The Appellant Praljak not present]

 4                           --- On resuming at 2.22 p.m.

 5             JUDGE AGIUS:  Good afternoon.  The Appeals Chamber now reconvenes

 6     the proceedings.

 7             I would like to first start with an update, since we were obliged

 8     to suspend the hearing earlier on today.  I have consulted with my

 9     colleagues, and the requirements of the right to a fair trial, including

10     the right to a public judgement, compel me to continue with the

11     pronouncement of the Judgement as it concerns the other Defence

12     appellants in this case, namely, Mr. Petkovic, Mr. Coric, and Mr. Pusic.

13     They have a right to know the result of their own case and it would also

14     be unfair to keep them waiting any longer.  As a consequence, I will now

15     move to the operative part of the disposition as it concerns

16     Mr. Petkovic, Mr. Coric, and Mr. Pusic.

17             I would also like to explain why we are meeting in this courtroom

18     rather than where we were before.  The reason is that Courtroom I now is

19     a crime scene, and the Dutch authorities have already made it secure for

20     the purpose of the investigation that will take place.

21             Mr. Petkovic, I had started already reading the disposition, the

22     operative part of the disposition, as it relates to you.  I will start

23     again.

24             For the record, I also wish to underline that Appellant Praljak

25     is absent from the courtroom.


Page 925

 1             With respect to Milivoj Petkovic -- you can follow the

 2     proceedings in a language that you can understand, Mr. Petkovic?  All

 3     right.

 4             Grants Petkovic's subground of appeal 5.2.2.4 in part and the

 5     Prosecution's ground of appeal 1 in part and reverses the Trial Chamber's

 6     findings that Petkovic was responsible as a participant in a JCE, under

 7     JCE I responsibility, for destruction or wilful damage done to

 8     institutions dedicated to religion or education as a violation of the

 9     laws or customs of war, in relation to the destruction of Baba Besir

10     mosque, in Mostar municipality, and the Skrobucani mosque, in Prozor

11     municipality, Count 21, in part, but finds him responsible in this regard

12     as a participant in a JCE, under JCE III liability;

13             Dismisses, Judge Liu dissenting in part and Judge Pocar

14     dissenting in part, Petkovic's appeal in all other respects;

15             Reverses, as a result of granting Stojic's subground of appeal

16     45.1 and Praljak's ground of appeal 12, Petkovic's convictions as a

17     participant in a JCE for, first, persecution, murder, and inhumane acts

18     as crimes against humanity and wilful killing and inhumane treatment as

19     grave breaches of the Geneva Conventions with regard to the killing of

20     seven civilians in Dusa, Gornji Vakuf municipality.  And that relates to

21     Counts 1, 2, 3, 15 and 16, all in part.  And secondly, murder as a crime

22     against humanity and wilful killing as a grave breach of the

23     Geneva Conventions for the killing of two unarmed men in Toscanica,

24     Prozor municipality, Counts 2 and 3, both in part;

25             Reverse, as a result of allowing the additional grounds of appeal


Page 926

 1     submitted by, variously, Prlic, Stojic, Praljak and Coric in response to

 2     the Prosecution's ground of appeal 3, Petkovic's conviction as a

 3     participant in a JCE for:  persecution as a crime against humanity in

 4     relation to the destruction, during attacks, of houses in Gornji Vakuf

 5     municipality, on 18 January 1993.  That deals with Count 1, in part.

 6     And, secondly, Judge Pocar dissenting, persecution as a crime against

 7     humanity and unlawful infliction of terror on civilians as a violation of

 8     the laws or customs of war in relation to the destruction of the old

 9     bridge of Mostar.  That's Count 1 and 25, both in part;

10             Reverses proprio motu Petkovic's convictions as a participant in

11     a JCE for extensive destruction and appropriation of property, not

12     justified by military necessity and carried out unlawfully and wantonly,

13     as grave breaches of the Geneva Conventions, in relation to the

14     destruction of houses and buildings and the appropriation of property

15     committed in Vares municipality, Counts 19 and 22, both in part;

16             Affirms, Judge Liu dissenting with respect to Count 25 and

17     Judge Pocar dissenting with respect to Counts 2 and 3 and in part Count

18     21, the remainder of Petkovic's convictions under Counts 1 to 13, 15-16,

19     18-19, 21 to 25;

20             Allows, Judge Liu dissenting, the Prosecution's ground of appeal

21     1(A) and 1(C) concerning Petkovic's responsibility as a participant in a

22     JCE for the incidents as set out in paragraphs 3018, 3030, 3079 and 3114

23     of the Judgement, but declines to quash the acquittals in this regard, or

24     to order a retrial or a remittance;

25             Allows, Judge Liu dissenting, the Prosecution's ground of appeal


Page 927

 1     1(E) in part and finds, Judge Liu dissenting, that the Trial Chamber

 2     incorrectly found Petkovic not guilty for committing through his

 3     participation in a JCE murder as a crime against humanity and wilful

 4     killing as a grave breach of the Geneva Conventions with respect to the

 5     killings in Dretelj prison, of one Muslim detainee on 16 July 1993 and

 6     three other detainees in mid-July 1993, Counts 2 and 3, both in part, but

 7     declines to enter new convictions against him in this regard;

 8             Allows the Prosecution ground of appeal 2 concerning Petkovic's

 9     superior responsibility for the incidents as set out in paragraphs 3134

10     and 3151 of this judgement, but declines to quash the acquittals in this

11     regard or to order a retrial or a remittance;

12             Allows the Prosecution's ground of appeal 3 in part and finds

13     that the Trial Chamber erred by failing to enter convictions for wanton

14     destruction of cities, town or villages, or devastation not justified by

15     military necessity as a violation of the laws or customs of war with

16     respect to the destruction, during attacks, of, first, Muslim property in

17     Prozor municipality between May or June and early July 1993; and (2)

18     mosques in east Mostar, Mostar municipality, between June and

19     December 1993, Count 20, in part, but declines to enter new convictions

20     against Petkovic in this regard;

21             Dismisses the Prosecution's appeal concerning Petkovic in all

22     other respects;

23             Affirms the sentence of 20 years of imprisonment, subject to

24     credit being given under Rule 101 of the Rules for the period he has

25     already spent in detention.


Page 928

 1             Mr. Petkovic, you may be seated.

 2             Mr. Coric, would you please stand up?

 3             With respect to Valentin Coric,

 4             Grants Coric's ground of appeal 11 in part and reverses his

 5     convictions as a participant in a JCE for crimes committed as of 10

 6     November 1993;

 7             Dismisses, Judge Liu dissenting in part, Coric's appeal in all

 8     other respects;

 9             Reverses, as a result of granting Stojic's subground of appeal

10     45.1 and Praljak's ground of appeal 12, Coric's conviction as a

11     participant in a JCE for:  persecution, murder, and inhumane acts as

12     crimes against humanity and wilful killing and inhumane treatment as

13     grave breaches of the Geneva Conventions with regard to the killing of

14     seven civilians in Dusa, Gornji Vakuf municipality.  That covers Counts

15     1, 2, 3, 15 and 16, all in part.  And, secondly, murder as a crime

16     against humanity and wilful killing as a grave breach of the

17     Geneva Conventions for the killing of two unarmed men in Toscanica,

18     Prozor municipality.  That covers Counts 2 and 3, both in part;

19             Reverses, as a result of allowing the additional grounds of

20     appeal submitted by, variously, Prlic, Stojic, Praljak, and Coric, in

21     response to the Prosecution's ground of appeal 3, Coric's convictions as

22     a participant in a JCE for:  persecution as crime against humanity in

23     relation to the destruction, during attacks, of houses in Gornji Vakuf

24     municipality on 18 January 1993; and, Judge Pocar dissenting, persecution

25     as a crime against humanity and unlawful infliction of terror on


Page 929

 1     civilians as a violation of the laws or customs of war in relation to the

 2     destruction of the old bridge of Mostar;

 3             Reverses proprio motu Coric's conviction as a participant in a

 4     JCE for extensive destruction of property, not justified by military

 5     necessity and carried out unlawfully and wantonly, as a grave breach of

 6     the Geneva Conventions in relation to the destruction of houses and

 7     buildings in Vares municipality;

 8             Affirms, Judge Liu dissenting with respect to Count 25 and

 9     Judge Pocar dissenting with respect to Counts 2 and 3, both in part, and

10     Count 21, the remainder of Coric's conviction under Counts 1 to 13,

11     15-16, 18-19, 21-25;

12             Allows, Judge Liu dissenting, the Prosecution's ground of appeal

13     1(A) and 1(C) concerning Coric's responsibility as a participant in a JCE

14     for incidents as set out in paragraphs 3018, 3030, 3079 and 3114 of this

15     Judgement, but declines to quash the acquittals in this regard, or to

16     order a retrial or a remittance;

17             Allows the Prosecution's ground of appeal 2 concerning Coric's

18     superior responsibility for the incidents as set out in paragraphs 3134

19     and 3151 of this judgement, but declines to quash the acquittals in this

20     regard, or to order a retrial or a remittance;

21             Allows the Prosecution's ground of appeal 3 in part and finds

22     that the Trial Chamber erred by failing to enter convictions for wanton

23     destruction of cities, towns or villages, or devastation not justified by

24     military necessity as a violation of the laws or customs of war with

25     respect to destruction, during attacks, of Muslim property in Prozor


Page 930

 1     municipality between May or June and early July 1993; and (2) mosques in

 2     east Mostar, Mostar municipality, between June and 10 November 1993,

 3     Count 20 in part, but declines to enter a new conviction against Coric in

 4     this regard;

 5             Grants the Prosecution's ground of appeal 4 concerning sentencing

 6     in part insofar as it relates to Coric's superior responsibility;

 7             Dismisses the Prosecution's appeal concerning Coric in all other

 8     respects;

 9             Affirms the sentence of 16 years of imprisonment, subject to

10     credit being given under Rule 101(C) of the Rules for the period he has

11     already spent in detention.

12             Mr. Coric, you may be seated.

13             Mr. Pusic is not here, but I will read the disposition.

14             First, we dismiss, Judge Liu dissenting in part, Pusic's appeal

15     in its entirety;

16             Reverses, as a result of granting Stojic's subground of appeal

17     45.1 and Praljak's ground of appeal 12, Pusic's conviction as a

18     participant in a JCE for murder as a crime against humanity and wilful

19     killing as a grave breach of the Geneva Conventions for the killing of

20     two unarmed men in Toscanica, Prozor municipality;

21             Reverses, as a result of allowing the additional grounds of

22     appeal submitted by, variously, Prlic, Stojic, Praljak, and Coric, in

23     response to the Prosecution's ground of appeal 3, and Judge Pocar

24     dissenting, Pusic's conviction as a participant in a JCE for persecution

25     as a crime against humanity and unlawful infliction of terror on


Page 931

 1     civilians as a violation of the laws or customs of war in relation to the

 2     destruction of the old bridge of Mostar;

 3             Reverses proprio motu Pusic's conviction as a participant in a

 4     JCE for extensive destruction of property, not justified by military

 5     necessity and carried out unlawfully and wantonly, as a grave breach of

 6     Geneva Conventions in relation to the destruction of houses and buildings

 7     in Vares municipality;

 8             Affirms, Judge Liu dissenting, with respect to Count 25 and

 9     Judge Pocar dissenting with respect to Counts 2, 3, and 21, the remainder

10     of Pusic's convictions under Counts 1-3, 6-13, 15-16, 18-19, 21, 24-25;

11             Allows, Judge Liu dissenting, the Prosecution's subground of

12     appeal 1(A) concerning Pusic's responsibility as a participant in a JCE

13     for incidents as set out in paragraphs 3018 and 3030 of the Judgement,

14     but declines to quash the acquittals in this regard, or to order a

15     retrial or a remittance;

16             Allows the Prosecution's grounds of appeal 3 in part and finds

17     that the Trial Chamber erred by failing to enter convictions for wanton

18     destruction of cities, towns or villages, or devastation not justified by

19     military necessity as a violation of the laws or customs of war with

20     respect to the destruction, during attacks, of Muslim property in Prozor

21     municipality between May or June and early July 1993; and, second,

22     mosques in east Mostar, Mostar municipality, between June and

23     December 1993, but declines to enter new convictions against Pusic in

24     this regard;

25             Dismisses the Prosecution's appeal concerning Pusic in all other


Page 932

 1     respects;

 2             Affirms the sentence of 10 years of imprisonment, subject to

 3     credit being given under Rule 101(C) of the Rules for the period he has

 4     already spent in detention;

 5             Rules that this Judgement shall be enforced immediately pursuant

 6     to Rule 118 of the Rules;

 7             Orders, pursuant to Rule 118(B) of the Rules, the arrest or

 8     surrender of Berislav Pusic to the UNDU in The Hague to be facilitated as

 9     early as practicable;

10             Orders, in accordance with Rules 103(C) and 107 of the Rules,

11     that the appellants are to remain in the custody of the Tribunal pending

12     the finalisation of arrangements for their transfer to the state where

13     their sentences will be served.

14             Judge Daqun Liu appends dissenting opinions, a partially

15     dissenting opinion, and a declaration.

16             Judge Fausto Pocar appends a dissenting opinion.

17             This concludes the appellate proceedings in this case.

18             Before we rise, I wish to also inform you that following my

19     instructions to the Registrar, the Dutch authorities have already

20     commenced an investigation into what happened this morning.

21             The Chamber now will rise.  Thank you.

22                           --- Whereupon the hearing adjourned at 2.43 p.m.

23

24

25