The Appeals Chamber today partially granted the appeals of both the Defence and the Prosecution in the Šainović et al. case involving four Serbian senior officials from the political, military, and police establishment of the Federal Republic of Yugoslavia (FRY) and Serbia. In its judgement, the Appeals Chamber reduced the sentence of Nikola Šainović from 22 to 18 years of imprisonment, the sentence of Sreten Lukić from 22 to 20 years of imprisonment, and of Vladimir Lazarević from 15 to 14 years in prison. The 22 year sentence of Nebojša Pavković was affirmed.

The case concerned crimes committed by Serbian forces in Kosovo between March and May 1999 when, after the start of the NATO bombing of Yugoslavia, a campaign of violence was launched against the Kosovo Albanian civilian population, during which many were forcibly displaced, incidents of killing and sexual assault took place, and mosques were intentionally destroyed. During the relevant period the four Appellants occupied some of the most senior positions in the Federal Republic of Yugoslavia and Serbia: Šainović was Deputy Prime Minister of the FRY, Pavković was Commander of the 3rd Army of the Army of Yugoslavia (VJ), Lazarević was Commander of the VJ Priština Corps, and Lukić head of the Serbian Ministry of the Interior (MUP) staff in Priština.

Each of the Appellants challenged their conviction and sentence, while the Prosecution appealed against the first-instance acquittal of each Appellant on certain counts, and also in relation to their sentences.

The Appeals Chamber confirmed the first instance finding that, during the spring of 1999, in all of the 13 Kosovo municipalities where specific crimes were charged, “forces of the FRY and Serbia deliberately and forcibly displaced Kosovo Albanian civilians both within and outside of Kosovo” and that during the forcible displacement of the Kosovo Albanian population, the FRY and Serbian forces killed hundreds of individuals, destroyed or damaged mosques, and sexually assaulted Kosovo Albanian women.

The Appeals Chamber also confirmed, Judge Tuzmukhamedov dissenting in relation to Šainović, the Trial Chamber’s conclusion that Šainović, Pavković and Lukić are guilty of participation in a joint criminal enterprise (JCE) with the goal of forcibly displacing the Kosovo Albanian population, and are individually responsible for a number of crimes found to constitute crimes against humanity and violations of the laws or customs of war. Similarly, the Appeals Judges confirmed that Lazarević bears individual responsibility for aiding and abetting crimes against humanity.

The Appeals Chamber also found that the crimes of deportation and other inhumane acts (forcible transfer) committed in Tušilje/Tushilë, Srbica/Skënderaj municipality, on 29 March 1999 were not pleaded in the indictment, which “caused prejudice and materially impaired the Appellants in the preparation of their defence”. Consequently, the Appeals Chamber vacated the convictions of all four Appellants in relation to this incident.

The Appeals Chamber also granted the challenge to the Trial Chamber’s factual finding regarding the displacement of the population from Kačanik/Kaçanik town and Turićevac/Turiçec. The Appeals Judges found that “no reasonable trier of fact could have concluded that the only reasonable inference was that members of the VJ forces, in relation to Kačanik/Kaçanik town, and members of the VJ and MUP forces, in relation to Turićevac/Turiçec, caused the displacement of the population”. Accordingly, the Appeals Chamber vacated Lazarević’s conviction in relation to Kačanik/Kaçanik town, and the convictions of all four Appellants regarding the incident in Turićevac/Turiçec.

In addition, the Appeals Chamber granted Lukić’s appeal concerning murders committed in the course of the Reka/Caragoj valley operation in Ðakovica/Gjakova municipality, and vacated both Pavković’s and Lukić’s convictions for murder as a war crime and a crime against humanity with respect to 274 of the 287 Kosovo Albanians found to be murdered. The Appeals Chamber found that it had only been established beyond reasonable doubt that 13 of the individuals killed were taking no active part in hostilities or were hors de combat at the time of their deaths.

Furthermore, the Appeals Chamber presented its conclusions as to Lazarević’s arguments that the Trial Chamber had erred in convicting him for aiding and abetting the crimes of deportation and inhumane acts (forcible transfer), since his alleged acts and omissions were not specifically directed to assist these crimes. The Appeals Chamber, after a careful examination of the jurisprudence of the ICTY and the ICTR, as well as customary international law, concluded, Judge Tuzmukhamedov dissenting, that “specific direction” is not an element of the aiding and abetting mode of liability. Thus, Lazarević’s challenge was dismissed.

The Appeals Chamber, Judge Liu dissenting, partially granted some sub-grounds of Šainović’s appeal, quashing his convictions for murder as a violation of the laws or customs of war, and murder and persecution, as crimes against humanity, committed prior to 7 May 1999 in the localities of Bela Crkva/Bellacërka, Mala Kruša/Krusha e Vogël, Suva Reka/Suhareka town, Izbica/Izbicë, Đakovica/Gjakova town, Korenica/Korenicë and Meja/Mejë, and near Gornja Sudimlja/Studimja e Epërme. The Appeals Chamber also partially granted some sub-grounds of Lukić’s appeal, quashing his conviction for murders committed prior to or on 1 April 1999 in the localities of Bela Crkva/Bellacërka, Mala Kruša/Krusha e Vogël, Suva Reka/Suhareka town, Izbica/Izbicë, Đakovica/Gjakova town.

The Appeals Chamber also granted, in part, the Prosecution’s appeal regarding sexual assaults against K31, K14, and K62 committed in Priština/Prishtina, establishing that the victims were raped with discriminatory intent by members of the VJ and MUP, and that these acts constitute persecution as a crime against humanity.

The Appeals Chamber, Judge Liu dissenting with regard to Šainović, also granted, in part, another ground of the Prosecution’s appeal, ruling that the Trial Chamber erred by not finding Šainović and Lukić liable for persecution, through sexual assaults, as a crime against humanity, committed in Beleg, Ćirez/Qirez and Priština/Prishtina. The judges also found unanimously that the Trial Chamber erred by not finding Pavković liable for the sexual assaults committed in Priština/Prishtina. However, the Appeals Chamber, Judge Ramaroson dissenting, declined to enter new convictions on appeal.

Regarding the appeals from all parties concerning sentencing, the Appeals Chamber found merit in the arguments of the Prosecution, Šainović, and Lukić pertaining to the Trial Chamber’s failure to individualise the sentences, as well as Lukić’s arguments regarding the assessment of his surrender as a mitigating circumstance. Overall, the Chamber stated that “in light of the circumstances of this case, as well as the gravity of the crimes for which the Appellants are responsible, and taking into account the principle of proportionality, a limited reduction in the sentences imposed by the Trial Chamber is warranted in relation to Mr Šainović, Mr Lazarević, and Mr Lukić”.

Judge Liu Daqun appended a partially dissenting opinion and a declaration, and Judge Arlette Ramaroson and Judge Bakhtiyar Tuzmukhamedov appended dissenting opinions.

The Šainović et al. trial counts among the Tribunal’s largest and most complex. Trial proceedings began on 10 July 2006 against six accused, including Milan Milutinović, the former president of Serbia, and Dragoljub Ojdanić, Chief of the General Staff of the VJ. The proceedings concluded on 27 August 2008.  The Trial Chamber heard oral testimony from a total of 235 witnesses, and admitted over 4,300 exhibits. First instance judgement was passed on 26 February 2009. In addition to the four convictions, the Trial Chamber acquitted Milutinović of all charges and Ojdanić was convicted to 15 years of imprisonment for aiding and abetting war crimes and crimes against humanity. The Office of the Prosecutor and Ojdanić’s defence withdrew their appeals in January 2013, and he was granted early release on 10 July 2013.

The Tribunal has indicted nine senior Serbian and Yugoslav officials for crimes carried out in Kosovo by Serbian forces in 1999, including the six mentioned above. Former Yugoslav leader Slobodan Milošević was the first sitting head of state to be charged for war crimes when the Tribunal indicted him in 1999. He stood trial between 2002 and 2006, charged with crimes allegedly committed in Kosovo, Croatia and Bosnia and Herzegovina, but died from natural causes on the eve of the trial’s conclusion and prior to a judgement being rendered. Vlajko Stojiljković, a senior police official close to Milošević, was indicted but committed suicide in Belgrade in 2002. The final judgement in the case of Vlastimir Đorđević, former Assistant Minister of the Serbian MUP and Chief of its Public Security Department, is scheduled to be pronounced on 27 January.

Since its establishment the Tribunal has indicted 161 persons for serious violations of humanitarian law committed on the territory of the former Yugoslavia between 1991 and 2001. Proceedings against 140 individuals have now been concluded.