Granted, in November 1992 and March 1993, General Blaskic ordered that the torching of houses stop and had asked commanders, in particular those of the regular HVO troops and of the Military Police, to identify the criminals responsible for those acts. But he almost never punished these criminals and never took steps to put them in a position where they could do no harm by imposing measures that would have prevented the very serious crimes in Loncari and Ocehnici from being repeated.^{( 1088 )}

The Trial Chamber therefore suggested that there were occasions where the Appellant did take the requisite measures but stated that the Appellant “almost never punished ” the criminals in the ranks. The Appeals Chamber considers that such a statement is not a proper assessment of criminal responsibility. Moreover, the Trial Chamber seemed to be making a vague reference to future crimes, rather than to the crimes committed in Loncari and Ocehnici in April 1993.

The mission of your troops: tie up the forces of the aggressor in this way:

a) Engage in the blockade of Visnjice and other villages that could be used by the enemy to launch an attack.

b) Take control of Gomionica and Svinjarevo after a strong artillery support by VBR and MB. The attack of the main forces to be made from Sikulje and Hadrovci. Establish the line of defense and keep the troops together.

c) In the sector no. 5, reinforce the troops at the object of Badnje (one company ) and at the object of Pobrde (one company).^{( 1128 )}

Paragraph 3 states inter alia that all of the aggressor’s attacks “have been repelled,” and that the city of Vitez is under HVO control. Paragraph 4 reads: “Keep in mind that the lives of the Croats in the region of Lasva depend upon your mission. This region could become a tomb for all of us if you show a lack resolution .”

Using all available artillery, carry out fire preparations for the attack from the VU /abbreviation unknown/. Capture Gomionica and Svinjarevo through systematic targeting (60, 82 and 120 mm MB /mortar launchers/). Afterwards, regroup forces and carry out artillery preparations for launching an attack on and the capture of Bilalovac .

Fojnica must secure your left flank and launch an attack on Dusina or a breakthrough toward Sebesic.

Persist tomorrow with the attack or we will be wiped out because the MOS /Muslim armed forces/ and the Mujahedin are advancing against the Croats in Zenica supported by tanks.

…

All army forces, (military and civilian) police forces are to be placed under the command of the Kiseljak Ban Jelacic Brigade.

All assault operations must be successful and to that end, use units of the military and civilian police for the mop up.

Maintain a sense of historic responsibility.^{( 1134 )}

there [are] levels of intensity of activity, and so after maybe an attack, there would be pockets that one could in a military have left because they were particularly difficult, so one bypasses. And then having won the main objective, you would go back and sort out, either surrender or destroy the enemy, and that action after the main event, when the intensity is reduced to a low intensity activity, that mopping up is the complete control that you wish to have over your territory and the clearing of enemy forces.^{( 1140 )}

The term "mop-up" is a legitimate military term meaning eliminating the remaining resistance that may exist in a particular area. That term does not refer to eradication . It means elimination of resistance. Generally speaking, in a military operation , you don't clean out successively each and every person or unit that may be resisting the offensive. Sometimes there are pockets that remain that need to be brought under control after the major military operation, and that's what's referred to as a mop-up operation. There's no way of telling if there might have been other directions, but as written here…this is a totally legitimate order to be given.^{( 1141 )}

Check out and assess the situation in Kiseljak immediately, and on that basis, with your forces from Kiseljak, disarm and capture all the areas held by the HVO, and in this connection, if possible, organize forces and equipment to blockade the approaches from Fojnica…. Arrange through the organs of authority for every village to be prepared to defend itself in its own way, albeit with pickaxes and hoes.

1) the offensives conducted in April in the municipality of Vitez and to the north of Kiseljak and in June to the south of Kiseljak all evolved along similar lines ;

2) the attacks on Kiseljak were on each occasion led mostly by HVO troops, and more precisely by the Ban Jelacic Brigade whose commander received orders directly from the accused;

3) and finally, the offensives all produced the same result: the systematic expulsion of Muslim civilian inhabitants from their villages and, in most cases, the destruction of their dwellings and the plunder of their property.^{( 1148 )}

These will be considered in turn.

Also, [applicable are] the provisions prohibiting their use in dangerous localities and employment, and in this connection it should be pointed out that we consider their use by combat troops in combat areas for the construction of field fortifications and otherwise to constitute dangerous employment under the conditions of modern war.^{( 1198 )}

(a) Whether the compelling of detainees to dig trenches of a military character is per se illegal

Cruel treatment as a violation of the laws or customs of war is

a. an intentional act or omission [...] which causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity,

b. committed against a person taking no active part in the hostilities.^{( 1209 )}

(b) Whether the Appellant was aware of a substantial likelihood that personnel under his command would perpetrate crimes against the detainees digging trenches

Counsel: “This is a direct order from Colonel Blaskic to the brigade commanders and to the wardens of the military prisons, 21 June, 1993, …, forbidding using prisoners of war to dig trenches.”

Brigadier Marin: “Yes. This order was given to the commanders of the brigade to implement. It was sent to the warden of the military prisons, because certain soldiers, independently, came to the warden of the prison and wanted to take people away. Therefore, the wardens were -- said that -- he can say, ‘General Blaskic sent an order that this was forbidden and I cannot allow to you do this.’ That is how I understand this order, and I know the order was issued for that purpose.”^{( 1220 )}

did know of the circumstances and conditions under which the Muslims were detained in the facilities mentioned above. In any case, [the Appellant] did not perform his duties with the necessary reasonable diligence. As a commander holding the rank of Colonel, he was in a position to exercise effective control over his troops in a relatively confined territory. [Footnote omitted] Furthermore, insofar as the accused ordered that Muslim civilians be detained, he could not have not sought information on the detention conditions. Hence, the Trial Chamber is persuaded beyond all reasonable doubt that [the Appellant] had reason to know that violations of international humanitarian law were being perpetrated when the Muslims from the municipalities of Vitez, Busovaca and Kiseljak were detained.^{( 1224 )}

(a) Effective control over personnel responsible for the unlawful conduct in the detention centres

(b) Actual or constructive knowledge

(i) the Appellant’s personal proximity to some of the detention centres precludes the finding that he was unaware of the presence of the detainees there;^{( 1274 )}

(ii) the Appellant testified that he frequently visited the front lines;^{( 1275 )}

(iii) the Appellant’s units were under-manned,^{( 1276 )} yet the trenches continued to be dug pursuant to his orders;^{( 1277 )}

(iv) the Appellant ordered any mistreatment of detainees to cease on several occasions ;^{( 1278 )}

(v) the practice was widely known to and reported by inter alia the ICRC,^{( 1279 )} the ECMM,^{( 1280 )} and UNPROFOR^{( 1281 )} representatives; and

(vi) other HVO personnel present in the area at the time testified that the detention of Muslims, and the use of detainees to dig trenches, was plainly evident.^{( 1282 )}

[The] Vitez Cultural Centre was in a municipal building barely a hundred metres from Blaskic’s headquarters at the Hotel Vitez. The building was originally used as a head office by the political parties in Vitez. Cerkez, commander of the HVO Vitez Brigade, had established his headquarters there. Beginning on 16 April 1993 , between 300 to 500 Muslim civilians were detained under guard of the Military Police and HVO soldiers. In the cellar, a large number of detainees, including some ill pensioners, had to sit or stand on the coal stored there. Since the number of detainees grew rapidly, they were transferred to other rooms in the building, such as the cinema hall, which also became overcrowded. Towards the end of the month some of the pensioners and ill were released but other detainees, particularly ABiH or SDA members and intellectuals, were transferred to other detention centres, such as Kaonik prison.^{( 1286 )}

A large number of the detainees at the Vitez Cultural Centre were taken out by force to dig trenches and other military fortifications, and of them were killed during that work process. While this is not an element of liability for the Appellant, it does contribute to a full understanding of the suffering of the detainees who had to endure the pitiful conditions in such a fearful environment.^{( 1287 )}

(c) Failure to Punish

The Defence highlighted that General Blaskic had no authority to control or sanction the detention centre administrators. [Footnote omitted] Nevertheless, as established above, the Trial Chamber identified HVO soldiers or the Military Police as being the perpetrators of the crimes. The evidence demonstrated that the accused did not duly carry out his duty to investigate the crimes and impose disciplinary measures or to send a report on the perpetrators of these crimes to the competent authorities [Footnote omitted].^{( 1294 )}

[a] commander who knows that the violations of the law of war took place and did not charge those responsible for the violations is personally responsible. In case he is not authorized to charge them, and he did not report them to the authorized military commander, he would also be personally responsible. A military commander is responsible as a participant or an instigator if, by not taking measures against subordinates who violate the law of war, he allows his subordinate units to continue to commit the acts.^{( 1312 )}

It would, thus, appear that the crime of taking civilians as hostages consists of the unlawful deprivation of liberty, including the crime of unlawful confinement …

The additional element … is the issuance of a conditional threat in respect of the physical and mental well-being of civilians who are unlawfully detained. The ICRC Commentary identifies this additional element as a “threat either to prolong the hostage’s detention or to put him to death”. In the Chamber’s view, such a threat must be intended as a coercive measure to achieve the fulfilment of a condition.^{( 1331 )}

The Trial Chamber concludes that although General Blaskic did not order that hostages be taken, it is inconceivable that as commander he did not order the defence of the town where his headquarters were located. In so doing, Blaskic deliberately ran the risk that many detainees might be taken hostage for this purpose.^{( 1342 )}

No prisoner of war may at any time be sent to, or detained in areas where he may be exposed to the fire of the combat zone, nor may his presence be used to render certain points or areas immune from military operations.

It also considers that Article 28 of Geneva Convention IV provides that “[t]he presence of a protected person may not be used to render certain points or areas immune from military operations.” Article 83 of the same Convention provides that the ’Detaining Power’ “shall not set up places of internment in areas particularly exposed to the dangers of war.” Furthermore, Article 51 of Additional Protocol I, relating to the protection of the civilian population in international armed conflicts, provides as follows:

[T]he presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favour or impede military operations. The Parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations.^{( 1364 )}

One of the soldiers said, while we were standing there, "you are going to sit here now and let your people shell you, because they have been shelling us up to now, and you better sit down and wait".^{( 1372 )}

[And:] we were told that if anybody moved, they would be shot on the spot because they could see us and they were watching us.^{( 1373 )}

Let me tell you, the moment that we were brought there with the children and with the men, knowing that there were people dead in the village, knowing a little of what had happened to the other villages, and seeing the fires, the shelling and everything, and what the soldier said, ‘you sit there for a time and let your people shell you now, because they have been shelling us so far’, and knowing that the hotel was a military base for a long time before that day, we could have expected shelling. At this point in time, I believe that we were brought there as a human shield because there were not many Croatian soldiers in the hotel, and then we were taken back. At that moment, at that time, I did not care whether I would die there or somewhere else.^{( 1376 )}

All acts or omissions herein set forth as grave breaches of the Geneva Conventions of 1949 (hereafter "grave breaches"), recognised by Article 2 of the Statute of the Tribunal, occurred during (the( conflict ….

All of the victims referred to in the charges under Article 2 of the Statute contained in this indictment were, at all relevant times, persons protected by the Geneva Conventions of 1949.

The accused in this indictment was required to abide by the mandate of the laws and customs of war including the Geneva Conventions of 1949.

The general allegations contained in paragraphs 5.0. through to 5.4 of this indictment are re-alleged and incorporated into each of the related charges set out below.^{( 1382 )}

By these acts and omissions Tihomir Blaskic committed:

Count 19: a grave breach as recognised by Articles 2(b), 7(1) and 7(3) (inhuman treatment) of the Statute of the Tribunal;

Count 20: a violation of the laws or customs of war as recognised by Articles 3, 7(1) and 7(3) (cruel treatment) of the Statute of the Tribunal and Article 3(1)( a) of the Geneva Conventions.^{( 1383 )}

(a) an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, which causes serious mental harm or physical suffering or injury or constitutes a serious attack on human dignity.

(b) committed against a protected person.^{( 1387 )}

(i) had been threatened with being shot^{( 1397 )} or otherwise put in danger; ^{( 1398 )}

(ii) had been told that they were possibly going to be shelled;^{( 1399 )}

(iii) had been treated in such a way as to inspire fear and humiliation;^{( 1400 )} and

(iv) had been forced to remain in front of the Hotel Vitez for two and a half to three hours before being returned to Gacice (the 47 men having been retained in detention) at around 1800 hours.

The Appeals Chamber considers that the use of the detainees as human shields caused them serious mental harm and constituted a serious attack on human dignity.

that, in this case, the aggravating circumstances unarguably outweigh the mitigating circumstances and that the sentence pronounced accurately reflects the degree of seriousness of the crimes perpetrated and the faults of the accused given his character , the violence done to the victims, the circumstances at the time and the need to provide a punishment commensurate with the serious violations of international humanitarian law which the Tribunal was set up to punish according to the accused’s level of responsibility.^{( 1418 )}

(a) The general practice regarding prison sentences in the courts of the former Yugoslavia

Although the Trial Chamber is not bound to apply the sentencing practice of the former Yugoslavia, what is required certainly goes beyond merely reciting the relevant criminal code provisions of the former Yugoslavia. Should they diverge, care should be taken to explain the sentence to be imposed with reference to the sentencing practice of the former Yugoslavia, especially where international law provides no guidance for a particular sentencing practice. The Trial Chamber notes that, because very important underlying differences often exist between national prosecutions and prosecutions in this jurisdiction, the nature, scope and the scale of the offences tried before the International Tribunal do not allow for an automatic application of the sentencing practices of the former Yugoslavia.^{( 1438 )}

(b) The gravity of the offence

(c) The individual circumstances of the accused^{( 1446 )}

mitigation of a sentence have not been defined exhaustively by the Statute or the Rules, and a Trial Chamber has considerable discretion in deciding how these factors are applied in a particular case.^{( 1448 )}

(i) Aggravating circumstances^{( 1449 )}

a. The Trial Chamber failed to mention the required standard of proof applicable to aggravating factors

b. The Trial Chamber incorrectly found that the accused’s motive could be considered as an aggravating factor

The Appeals Chamber finds that the Trial Chamber did not err in holding that “a discriminatory state of mind may however be regarded as an aggravating factor in relation to offences for which such a state of mind is not an element.” A discriminatory state of mind is not an element of the crime of murder under Article 3 of the Statute and was not therefore taken into account in convicting the Appellant for the crime of murder. It could however be taken into account in estimating the gravity of the murder. This is the way the Trial Chamber used it. The discriminatory state of mind was used once in order to assess the gravity of the crime of murder and, of course on another occasion, in order to establish that the Appellant had the requisite discriminatory intent of the crime of persecution. The Trial Chamber committed no error in holding that a discriminatory state of mind can be regarded as an aggravating factor in relation to the crime of murder.^{( 1480 )}

The law relating to aggravating factors as applied by the International Tribunal is clear. Where an aggravating factor is present and yet is not an element of the crime, that factor may be considered in aggravation of sentence. However, where an aggravating factor for the purposes of sentencing is at the same time an element of the offence, it cannot also constitute an aggravating factor for the purposes of sentencing.^{( 1481 )}

The Appeals Chamber further recalls the necessity to distinguish specific intent from motive. The personal motive of the perpetrator of the crime of genocide may be, for example, to obtain personal economic benefits, or political advantage or some form of power. The existence of a personal motive does not preclude the perpetrator from also having the specific intent to commit genocide.^{( 1484 )}

The Appeals Chamber wishes to assert the important distinction between “intent” and “motivation”. The Appeals Chamber holds that, even if the perpetrator’s motivation is entirely sexual, it does not follow that the perpetrator does not have the intent to commit an act of torture or that his conduct does not cause severe pain or suffering , whether physical or mental, since such pain or suffering is a likely and logical consequence of his conduct. In view of the definition, it is important to establish whether a perpetrator intended to act in a way which, in the normal course of events , would cause severe pain or suffering, whether physical or mental, to his victims .^{( 1485 )}

The Appeals Chamber notes that criminal intent (mens rea) must not be confused with motive and that, in respect of genocide, personal motive does not exclude criminal responsibility providing that the acts proscribed in Article 2(2)(a) through to (e) were committed “with intent to destroy, in whole or in part a national, ethnical , racial or religious group”.^{( 1486 )}

(ii) Mitigating circumstances

a. The Trial Chamber did not adhere to the required standard of proof in assessing mitigating factors

b. The Trial Chamber should have considered the Appellant’s cooperation with the Prosecutor and his voluntary surrender as mitigating factors

c. The Trial Chamber should have considered the Appellant’s remorse as a mitigating factor

The Trial Chamber points out that, from the very first day of his testimony, Tihomir Blaskic expressed profound regret and avowed that he had done his best to improve the situation although this proved insufficient. (Footnote omitted( The Trial Chamber observes that there is a flagrant contradiction between this attitude and the facts it has established - having given orders resulting in the commission of crimes the accused cannot claim that he attempted to limit their consequences. His remorse thus seems dubious.^{( 1516 )}

d. Evidence of the Appellant’s good character as a mitigating factor

(iii) The personal circumstances of the Accused

d. Credit to be given for any time spent in detention pending transfer to the International Tribunal, trial, or appeal

e. The special position of the Appellant as a military commander in a particular conflict

f. The Trial Chamber improperly relied on the Appellant’s failure to enter a guilty plea

A Trial Chamber’s decision may be disturbed on appeal if an appellant shows that the Trial Chamber either took into account what it ought not to have, or failed to take into account what it ought to have taken into account, in the weighing process involved in this exercise of the discretion.^{( 1534 )}

On a plain reading of the relevant paragraphs of the Trial Judgement,^{( 1535 )} the Appeals Chamber cannot conclude that the Trial Chamber in any way relied on or drew an adverse inference from the Appellant’s failure to plead guilty in deciding the Appellant’s sentence. Thus, while the Trial Chamber’s consideration of this element in abstracto is of no relevance to the sentence imposed, it cannot be found to be improper.

The process of determining the individual sentences . . . requires a consideration of the particular offence in respect of which that count was charged and the evidence of the circumstances in which that offence was committed to enable a determination of the gravity of the offence. The imposition of exactly the same penalty for each count, . . . , and the order that they be served concurrently, demonstrates that the Trial Chamber made no attempt to distinguish between the gravity of each of the offences. It effectively simply imposed a global sentence of seven years to cover every offence, which was a manifestly erroneous assessment of the totality of [the accused’s] conduct.^{( 1546 )}

Here, the crimes ascribed to the accused have been characterised in several distinct ways but form part of a single set of crimes committed in a given geographic region during a relatively extended time-span, the very length of which served to ground their characterisation as a crime against humanity, without its being possible to distinguish criminal intent from motive. The Trial Chamber further observes that crimes other than the crime of persecution brought against the accused rest fully on the same facts as those specified under the other crimes for which the accused is being prosecuted. In other words, it is impossible to identify which acts would relate to which of the various counts - other than those supporting the prosecution for and conviction of persecution under count 1 which, moreover, covers a longer period of time than any of the other counts. In light of this overall consistency , the Trial Chamber finds that there is reason to impose a single sentence for all the crimes of which the accused has been found guilty.^{( 1547 )}

For the foregoing reasons, THE APPEALS CHAMBER

PURSUANT to Article 25 of the Statute and Rules 117 and 118 of the Rules;

NOTING the respective written submissions of the parties and the arguments they presented at the hearings of 16 and 17 December 2003;

SITTING in open session;

DISMISSES the Appellant’s ground of appeal concerning denial of due process of law;

ALLOWS by majority, Judge Weinberg de Roca dissenting, the Appellant’s ground of appeal concerning his responsibility for the crimes committed in Ahmici, Šantici , Pirici, and Nadioci, on 16 April 1993, REVERSES the Appellant’s convictions pursuant to Article 7(1) of the Statute under Counts 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, and 14 for these crimes, and REVERSES the Appellant’s convictions pursuant to Article 7(3) of the Statute under Counts 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, and 14 for these crimes;

ALLOWS unanimously, the Appellant’s ground of appeal concerning his responsibility for the crimes committed in parts of the Vitez Municipality other than Ahmici, S antici, Pirici, and Nadioci, in April, July, and September 1993, REVERSES his convictions pursuant to Article 7(1) of the Statute under Counts 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, and 14 for these crimes, and REVERSES his convictions pursuant to Article 7(3) of the Statute under Counts 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, and 14 for these crimes;

ALLOWS unanimously, the Appellant’s ground of appeal concerning his responsibility for crimes committed in Loncari and Ocehnici in the Busovaca Municipality in April 1993, REVERSES his convictions under Article 7(1) of the Statute under Counts 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, and 14 for these crimes, and FINDS that no finding was made by the Trial Chamber pursuant to Article 7(1) of the Statute in relation to the January 1993 attacks in Busovaca, and that no finding was made by the Trial Chamber pursuant to Article 7(3) of the Statute concerning the crimes committed in Loncari and Ocehnici in April 1993;

ALLOWS unanimously, the Appellant’s ground of appeal concerning his responsibility for the crimes committed in April 1993 in Kiseljak, REVERSES his conviction under Article 7(1) of the Statute under Counts 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 , 13, and 14 for these crimes, and FINDS that no finding was made by the Trial Chamber pursuant to Article 7(3) of the Statute in relation to the crimes;

ALLOWS unanimously, the Appellant’s ground of appeal concerning his responsibility for detention-related crimes, to the extent that his appeal against the convictions under Counts 17, 18, and 20 pursuant to Article 7(1) of the Statute is granted, and REVERSES his convictions under those counts;

AFFIRMS, unanimously, the Appellant’s convictions under: 1) Count 15 pursuant to Article 7(3) of the Statute for the detention-related crimes committed in the relevant detention facilities, 2) Count 16 pursuant to Article 7(1) of the Statute for ordering the use of protected persons for the construction of defensive military installations, and 3) Count 19 under Article 7(1) of the Statute for the inhuman treatment of detainees occasioned by their use as human shields, and FINDS that no finding was made by the Trial Chamber pursuant to Article 7(3) of the Statute under Counts 15 or 16 in relation to the use of protected persons for the construction of defensive military installations, under Counts 17 or 18 in relation to the taking of hostages, or under Counts 19 and 20 for the inhuman treatment of detainees occasioned by their use as human shields;

DISMISSES the Appellant’s appeal against convictions in all other respects ;

ALLOWS unanimously, in part, the Appellant’s ground of appeal against the sentence, and IMPOSES by majority, Judge Weinberg de Roca dissenting, a new sentence;

SENTENCES the Appellant to 9 (nine) years imprisonment to run as of this day, subject to credit being given under Rule 101(C) of the Rules for the period the Appellant has already spent in detention, that is from 1 April 1996 to the present day;

ORDERS, in accordance with Rule 103(C) and Rule 107 of the Rules, that the Appellant is to remain in the custody of the International Tribunal pending the finalization of arrangements for his transfer to the State where his sentence will be served.

Done in English and French, the English text being authoritative.

_____________________

Judge Fausto Pocar
Presiding

_____________________________________
Judge Florence Ndepele Mwachande Mumba

____________________

Judge Mehmet Güney
_______________________
Judge Wolfgang Schomburg
_______________________________
Judge Inés Mónica Weinberg de Roca

Judge Wolfgang Schomburg appends a separate opinion limited to the sentence.

Judge Inés Mónica Weinberg de Roca appends a partial dissenting opinion.

Dated this twenty-ninth day of July 2004,
At The Hague,
The Netherlands.

XIV. SEPARATE OPINION OF JUDGE SCHOMBURG

With regard to the legal and factual findings I am in full agreement with the majority . I also fully accept, within the margin determined by the Appellant's individual guilt, the special emphasis on general deterrence as an aggravating factor in finding the appropriate sentence, in particular when it is to prevent commanders in similar circumstances from committing similar crimes in the future.

However, in all circumstances of the convictions, including the aggravating and mitigating sentencing factors set out in this Judgement, I hold that the remaining crimes committed by the Appellant, limited to wilful interference with the safety of others, do not justify a term of imprisonment as long as that imposed by the Appeals Chamber.

Done in English and French, the English text being authoritative.

__________________

Wolfgang Schomburg

Dated this twenty- ninth day of July 2004
At The Hague
The Netherlands

[Seal of the International Tribunal]

1. After more than two years of trial, having heard 158 witnesses and having considered more than 1300 pieces of evidence, three experienced trial judges concluded that the Appellant was guilty beyond a reasonable doubt and sentenced him to forty-five years of imprisonment. The Appeals Chamber disagrees and reverses the judgement, sentencing the Appellant to nine years.

2. In my opinion, the Appeals Chamber is only able to reach this conclusion by disregarding the deference normally accorded to the trier of fact. In doing so, the Appeals Chamber announces a new standard of review. This new standard empowers the Appeals Chamber to independently assess whether “it is itself convinced beyond reasonable doubt as to the finding of guilt.”^{( 1560 )} In making this assessment, the Appeals Chamber limits its examination of the trial record to those portions of the record cited in the Trial Judgement or mentioned in the parties’ submissions. As a consequence, in evaluating the additional evidence admitted on appeal the Appeals Chamber neglects to consider the totality of the evidence. Moreover, in applying this new standard, the Appeals Chamber fails to properly assess the probative value of the admitted additional evidence and ignores the Prosecution’s rebuttal evidence.

3. The standard of appellate review with respect to alleged errors of fact firmly established by the jurisprudence of the International Tribunal is a “reasonableness ” standard.^{( 1561 )} Under this standard , the Appeals Chamber assesses whether a finding of fact made by the Trial Chamber was one that no reasonable trier of fact could have reached. In all prior cases, this standard was applied when assessing all errors of fact, regardless of whether additional evidence was adduced on appeal. This standard is consistent with the Statute of the International Tribunal, which limits appellate jurisdiction to factual errors occasioning a miscarriage of justice and not to all errors of fact in the Trial Judgement.^{( 1562 )}

4. In the present case, the Appeals Chamber has introduced an innovative standard of review which requires that when additional evidence is introduced on appeal, “the Appeals Chamber will determine whether, in light of the trial evidence and additional evidence admitted on appeal, it is itself convinced beyond reasonable doubt as to the finding of guilt.”^{( 1563 )}

5. It is well established that the Appeals Chamber should not lightly overturn a Trial Chamber’s findings of fact.^{( 1564 )} The reasons for this deference are obvious and are fundamental to the conceptual distinction between the trial of first instance and the appeal. It is the judges of the Trial Chamber who are uniquely positioned to evaluate and assess the evidence , having been immersed in the case over a long period of time. The judges at trial have the distinct advantage of observing the witnesses in person. They are best placed to assess a witness’s demeanour and are able to question witnesses directly . Even where additional evidence is admitted on appeal, the Appeals Chamber hears only a very a small percentage of the total witnesses. In this case, the Appeals Chamber heard six witnesses over four days and admitted 108 pieces of evidence, compared to the Trial Chamber’s 158 witnesses and 1300 pieces of evidence.

6. I accept that in cases involving additional evidence, the Appeals Chamber is less deferential because it becomes the primary trier of fact in relation to the new evidence. It should nevertheless still defer, to the extent possible, to the Trial Chamber’s evaluation of the evidence in relation to matters unaffected by the additional evidence, such as the credibility or reliability of witnesses who testified at trial. The primary question remains whether no reasonable trier of fact could have reached the finding of fact in the trial judgement. In cases involving additional evidence this analysis is undertaken in light of the new evidence, the probative value of which the Appeals Chamber is free to assess without deference to the Trial Chamber. But this evaluation of additional evidence must be undertaken together with a consideration of the evidence in the trial record, with deference observed where possible.^{( 1565 )}

7. The Appeals Chamber has failed to provide “cogent reasons in the interests of justice” for departing from this well established precedent.^{( 1566 )} The Appeals Chamber’s explanation is that its new standard is necessary because “if it were to apply a lower standard, then the outcome would be that neither in the first instance, nor on appeal, would a conclusion of guilt based on the totality of evidence relied upon in the case… be reached by either Chamber, beyond reasonable doubt.”^{( 1567 )} This argument seems to suggest that a single chamber should evaluate the totality of the evidence available before reaching a conclusion of guilt beyond a reasonable doubt. However, it is apparent that the Appeals Chamber does not consider the totality of the available evidence, but rather only those elements of the record which are referred to in the Trial Judgement or by the parties.^{( 1568 )} Thus, the only reason advanced to support the new standard of review is undermined by the Appeals Chamber’s own application of the standard to the facts of this case .

8. The Appeals Chamber asserts that this new standard is necessary in the interests of justice. I disagree. This argument ignores the fact that the Appellant has already been convicted by a Trial Chamber at the “beyond a reasonable doubt” standard, and minimizes the importance of the principle of finality. On appeal, the burden is on the Appellant to demonstrate that an error of fact occasioning a miscarriage of justice has occurred. The Appeals Chamber’s new standard places this burden on the Prosecution, which must prove for a second time that the Appellant is guilty beyond a reasonable doubt even in light of the new evidence.

9. Of course, I accept that every finding of guilt in a criminal trial must be established beyond a reasonable doubt. Where additional evidence adduced on appeal raises sufficient doubt, then the Appeals Chamber will reverse the conviction. I emphasize, however , that this is not because the Appeals Chamber has conducted a second trial and has reached its own conclusion of guilt beyond a reasonable doubt on the basis of the combined trial and appellate evidence, but rather because the Trial Chamber’s finding of fact is no longer one that a reasonable trier of fact could have reached in light of the newly adduced doubt-raising evidence.

10. Whichever standard is applied, the Appeals Chamber must evaluate the probative weight to be accorded to additional evidence in light of the totality of the evidence on the record of the trial and the appeal. This is even more important if the standard of review proposed by the Appeals Chamber were to be accepted. However, as the Appeals Chamber acknowledges, it limits its evaluation of the evidence to those portions of the record cited in the Trial Judgement or by the parties on appeal. The Appeals Chamber states, with no justification for its approach, that:

The Appeals Chamber reiterates that an appeal is not a trial de novo. In making its assessment, the Appeals Chamber will in principle only take into account the following factual evidence: evidence referred to by the Trial Chamber in the body of the judgement or in a related ; evidence contained in the trial record and referred to by the parties; and additional evidence admitted on appeal .^{( 1569 )}

11. This approach is contrary to the Rules of Procedure and Evidence (“Rules”). Rule 115(B) of the Rules requires the Appeals Chamber to consider “the additional evidence and any rebuttal material along with that already on the record to arrive at a final judgement in accordance with Rule 117.” Rule 117(A) of the Rules explicitly states that “(t(he appeals Chamber shall pronounce judgement on the basis of the record on appeal together with such additional evidence as has been presented to it.” The record on appeal is defined in Rule 109 of the Rules as consisting of “ the trial record, as certified by the Registrar.” The record is not limited to the materials referred to in the trial judgement or by the parties; it is the entire trial record.^{( 1570 )}

12. As the Appeals Chamber has previously explained in a number of cases, “the fact that the Trial Chamber did not mention a particular fact in its written order does not by itself establish that the Chamber has not taken that circumstance into its consideration.”^{( 1571 )}

13. The approach adopted by the Appeals Chamber leads to an overestimation of the probative weight that should properly be accorded to the additional evidence. For example, the Trial Chamber recounts the testimony of Witness Bagessen relating to the arrest and subsequent release of General Merdan as part of its analysis of whether the Appellant had control over the Military Police who made the arrest.^{( 1572 )} The Appeals Chamber revisits this analysis in light of new evidence on appeal which suggests that the release may have been secured by Kordic rather than the Appellant . In light of the new evidence, the Appeals Chamber makes the summary conclusion that the additional evidence “shows that Witness Baggesen’s account was mistaken , and confirms that the Military Police commander who detained General Merdan refused to carry out the Appellant’s order for his release.”^{( 1573 )} However, this analysis fails to examine the other evidence in the trial record relating to this event. Notably, the Appeals Chamber ignores the Appellant’s own trial testimony concerning this event in which he maintains that, although he could not order the Military Police Commander to release the detainees, he “eventually convinced him to release the arrested individuals”.^{( 1574 )} The Appellant, who directly participated in securing the release of the detainees , did not testify about any intervention by Kordic.

14. The Appeals Chamber’s failure to consider the entire record also results in an exaggerated understanding of the novelty of the additional evidence and leads the Appeals Chamber to erroneously assume that the additional evidence is something that was not considered by the Trial Chamber. Take, for example, the Appeals Chamber’s discussion of the events relating to the “Convoy of Joy”. The Appeals Chamber relies on the appeals testimony of Witness Watkins, who recounted that the humanitarian convoy was stopped at a checkpoint manned by the Jokers and that, despite the Appellant’s clearance, the Jokers would only permit them to pass after Kordic’s personal intervention .^{( 1575 )} The Appeals Chamber states that this new evidence supports the conclusion that “the Military Police units, including the Jokers, were not de facto commanded by the Appellant”.^{( 1576 )} Had the Appeals Chamber considered the entirety of the Trial Record, however, it would have seen that other witnesses testified at trial about this incident. For example, Colonel Alistair Duncan testified that the soldiers, Military Police, and civilians who stopped the Convoy of Joy refused to carry out the order of the Appellant and that the Witness was told by a soldier “that they wanted the order to come from Kordic”.^{( 1577 )} Colonel Duncan’s testimony that the Appellant had no control over the situation was entirely consistent with that of Witness Watkins, and was already considered by the Trial Chamber.

15. The Appeals Chamber has also failed to evaluate the probative value of the additional evidence admitted on appeal. Providing only bare descriptions of the additional evidence, the Appeals Chamber has not made any findings of credibility or reliability in relation to this new evidence, instead seeming to accept each document or testimony as the truth. Where there is a contradiction between the additional evidence and the trial evidence, the Appeals Chamber has not articulated any reasons why it has preferred the additional evidence over that adduced at trial. This approach assumes that, once admitted pursuant to Rule 115, the credibility and reliability of that additional evidence has been established. This is incorrect. At the time of its admission, the evaluation of the additional evidence is necessarily preliminary ; the Appeals Chamber does not yet have the benefit of the parties’ final arguments on its weight.^{( 1578 )}

16. For example, the Judgement of the Appeals Chamber is silent on the probative value of Exhibit 1 to the Second Rule 115 Motion, a Ministry of the Interior Police (MUP) report on the events in Ahmici. Although this report is undated, it was certainly created after the 3 March 2000 delivery of the Trial Judgement since it refers to the preparation of the report on the basis of data “gathered since March 2000”.^{( 1579 )} The report is admittedly preliminary and it is specifically stated that the information is “neither complete nor verified in detail since it is of an operative nature”.^{( 1580 )} The credibility and reliability of this document, which was prepared in reaction to the Trial Judgement, is questionable. Nevertheless, the Appeals Chambers appears to rely, without explanation, on the report’s unsourced speculation that “it is most likely” that two meetings were held on 15 April 1994 and that the Ahmici massacre was planned at the second meeting at the Kordic family home in the absence of the Appellant.^{( 1581 )}

17. In its analysis of the evidence admitted on appeal, the Appeals Chamber fails to address the merits of the rebuttal evidence admitted on behalf of the Prosecution . It does not consider this rebuttal evidence when evaluating the probative value of the Appellant’s additional evidence or when evaluating whether it is satisfied beyond a reasonable doubt as to the guilt of the Appellant. The one and only reference to an item of rebuttal evidence in the main text of the Appeals Chamber’s analysis (rather than in the Appeals Chamber’s summary of the submissions of the parties) can be found in paragraph 563 of the Judgement of the Appeals Chamber. Even the s to the Appeals Chamber’s analysis contain only a handful of references to a very limited range of rebuttal evidence. Having already determined that this material “directly affects the substance of the additional evidence admitted by the Appeals Chamber”,^{( 1582 )} it is incumbent on the Appeals Chamber to explain why it did not merit examination.

18. For example, the Appeals Chamber found that “the Appellant lacked effective control over the military units [Military Police and Jokers] responsible for the commission of crimes in the Ahmici area on 16 April 1993”.^{( 1583 )} In doing so, the Appeals Chamber did not even mention PA14, a document signed by the Appellant on 18 April 1993 at 2:00 a.m. commending the Military Police 4th Battalion and their commander “for courage displayed in defending Croatian people and Croatian areas and conducting their military duties”.^{( 1584 )} In this document, the Appellant instructs that “(i(nformation on the commendation of the unit and its commander are to be entered in their HVO personal files.” In my opinion, Exhibit PA14 is relevant to a number of the Appeals Chamber’s conclusions , and yet it is never mentioned in the Judgement of the Appeals Chamber.

19. In my view, if the Appeals Chamber had applied the correct standard of review and if it had properly evaluated the totality of the evidence on the record, the conclusions reached by the Appeals Chamber would have been significantly different . To demonstrate this, and to illustrate why I have dissented from the approach adopted by the Appeals Chamber, I have chosen to concentrate my analysis on the most serious crimes for which the Appellant was convicted at trial and then acquitted on appeal, the attacks on civilians in Ahmici, Šantici, Pirici, and Nadioci on 16 April 1993. While I have limited my analysis to these events, I am satisfied that the application of the correct approach to the other factual findings overturned by the Appeals Chamber would have rendered different results. My analysis tracks that of the Appeals Chamber in order to demonstrate how and why our views diverge .

20. The Trial Chamber convicted the Appellant pursuant to Article 7(1) for crimes targeting the Muslim civilian population that were perpetrated as a result of his ordering the 16 April 1993 attack on the village of Ahmici and neighbouring villages .^{( 1585 )} The Trial Chamber reasoned that: (i) the attack was planned at a high level of the military hierarchy; (ii) the attack involved the Military Police including the Jokers, as well as regular HVO units including the Viteska Brigade and the Domobrani; (iii) the attack targeted the Muslim civilian population; (iv) the Appellant had command authority over those who committed the crimes. The Trial Chamber found that the Appellant was responsible for ordering the attack with either the clear intention that the massacre would be committed or, at least, with knowledge of a risk of crimes being committed and acceptance of such a risk.^{( 1586 )}

21. The Appeals Chamber’s reversal of these findings pays no deference to the Trial Chamber’s careful analysis of the evidence at trial. Rather the Appeals Chamber concludes that the Trial Chamber’s assessment of the trial evidence was “wholly erroneous”^{( 1587 )} because the Trial Chamber interpreted Defence Trial Exhibit D269 “in a manner contrary to the meaning of the order”^{( 1588 )} and because the Trial Chamber failed to give weight to evidence suggesting that the Busovaca-Travnik road was a legitimate military target.^{( 1589 )} The Appeals Chamber also concludes that the trial evidence did not support the conclusion that the Muslim Army of Bosnia-Herzegovina (“ABiH”) forces were not preparing for combat in the Ahmici area, without citing the relevant evidence.^{( 1590 )} Instead, the Appeals Chamber relies on additional evidence admitted on appeal to conclude that there was a military justification for the Appellant to issue Exhibit D269.^{( 1591 )}

22. However, the Trial Chamber itself found that D269 was presented as a defensive combat command to prevent an attack by the enemy.^{( 1592 )} Nevertheless, the Trial Chamber concluded that, in light of the totality of the evidence, it was “very clearly an order to attack.”^{( 1593 )} In reaching this conclusion, the Trial Chamber observed that the order was addressed to the Viteska Brigade, but mentions other units such as the Military Police 4th Battalion, which “were recognised on the ground as being those which had carried out the attack.”^{( 1594 )} The Trial Chamber noted that the time set out in the order to commence hostilities corresponded precisely to the start of fighting in the Ahmici area.^{( 1595 )} Elsewhere in the Judgement, the Trial Chamber observed that Exhibits D268 and D269 recommended modes of combat, such as taking control over fuel consumption, and “ blocking (observation and ambush), search, and offensive forces”, which were actually used on 16 April 1994.^{( 1596 )} Moreover , the Trial Chamber found that the attack started with artillery fire, weapons which had been placed under the Appellant’s direct command.^{( 1597 )} The Trial Chamber also noted that the massive and systematic nature of the crimes and the testimonies of the victims of the attack served to support the conclusion that it was ordered.^{( 1598 )}

23. The Trial Chamber also carefully reviewed the evidence relating to whether the attack was a defensive measure or a measure directed against a legitimate military target, before concluding that no military justification existed. Contrary to the assertion of the Appeals Chamber, the Trial Chamber did consider the Defence evidence that HVO intelligence suggested that Muslim troops might seek to regain control of the Busovaca-Travnik road. However, the Trial Chamber dismissed this argument because the villages that were attacked, with the exception of Santici, were not on the main road.^{( 1599 )} The Trial Chamber considered and dismissed the other arguments put forward by the Appellant to explain the fighting, noting that “much of the evidence contradicted the Defence submission that the ABiH forces were preparing for combat”.^{( 1600 )} The Trial Chamber also considered the evidence of international observers, who “ unanimously confirmed that those villages had not prepared for an attack.”^{( 1601 )}

24. Despite the evidence closely considered by the Trial Chamber, the Appeals Chamber finds that the additional evidence now “shows that there was a Muslim military presence in Ahmici and the neighbouring villages, and that the Appellant had reason to believe that the ABiH intended to launch an attack along the Ahmici-Santici-Dubravica axis ”^{( 1602 )} and consequently that there was a military justification for the Appellant to issue Exhibit D269.^{( 1603 )} To support its conclusion, the Appeals Chamber relies on Exhibit 12 to the Fourth Rule 115 Motion, Exhibit 13 to the Fourth Rule 115 Motion, and the testimonies of Witnesses BA5, BA1, and BA3.^{( 1604 )} In my opinion, this additional evidence merely supplements that which was already available at trial.

25. Exhibit 12 to the Fourth Rule 115 Motion, an order on the engagement of units issued by 3rd Corps Commander Enver Hadzihasanovic to the 325th Mountain Brigade on 16 April 1993, describes a series of orders that were taken “with the aim of assisting our forces and tying down the HVO forces.” The document indicates that the 1st Battalion of the 303rd Mountain Brigade was sent to “assist our forces in the villages of … and Ahmici, and in the event of an attack by HVO units, to switch to a resolute counterattack.” Prosecution Trial Exhibit P475, also issued on 16 April 1993, appears to be the relevant order that commands the 303rd Brigade to move. In his trial testimony Witness Hadzihasanovic explained that in giving that order on 16 April 1993, when he ordered troops “to assist our forces” in Ahmici he was referring to the territorial defence unit from Zenica that first responded to the attack.^{( 1605 )} Considered in context, the additional evidence does not add anything to the evidence already available at trial and therefore would not have affected the Trial Chamber’s findings.

26. Exhibit 12 to the Fourth Rule 115 Motion also states that the 7th Muslim Mountain Brigade was sent to Ahmici village sector “to assist our forces in the defence … and be in readiness to carry out a(n( … infantry attack”. This is supported by Exhibit 13 to the Fourth Rule 115 Motion, an order issued by Commander Asim Koricic to the 7th Muslim Brigade on 16 April 1993. Although these documents suggest that a company from the 7th Muslim Brigade could be mobilised to support the combat operations in Ahmici, they do not demonstrate that these troops were preparing to attack in the region. On the contrary, this Brigade appears to have been moved in a manner similar to the 325th Brigade, in reaction to the HVO attack on the Ahmici area in the early morning of 16 April 1993.

27. Witnesses BA1 and BA3, witnesses with military backgrounds, testified that Exhibit D269 appeared to be a legal order consistent with the military intelligence evidence shown to them.^{( 1606 )} I find these witnesses’ abstract discussion of the legality of Exhibit D269 to be credible. However , their commentary on the theoretical legitimacy of the orders does not demonstrate that the Trial Chamber’s findings were unreasonable. The Trial Chamber itself admitted that the language of Exhibit D269 was defensive and considered evidence produced by the Appellant to demonstrate the legitimacy of his actions.^{( 1607 )}

28. On appeal, Witness BA5 testified that the Territorial Defence staff of Dubravica and Sivrino Selo, which included Ahmici, had a platoon of between 30 and 35 people at maximum, who shared up to 30 rifles. I would accept that this witness was credible and was in a good position to observe the operation of the Territorial Defence in the area. However, this account does not present a challenge to the Trial Chamber’s findings, which appear to have been based on the evidence of Witness Abdullah Ahmic , who testified that the “territorial defence was starting to organise in the area and consisted of about 120 men”.^{( 1608 )} Again, although the additional evidence adds further details not available to the Trial Chamber, it is not of such a nature as to impact upon the reasonableness of the Trial Chamber’s conclusions.

29. The Prosecution argues that its rebuttal evidence demonstrates that the Appellant gave illegal orders and that he instructed his troops to justify his orders as a response to provocation from the other side.^{( 1609 )} The additional evidence, considered in light of the rebuttal evidence as well as the evidence on the trial record, fails to establish that the Trial Chamber erred in finding that there was no military justification for ordering an attack on the villages of Ahmici, Šantici, Pirici, and Nadioci on 16 April 1993. Although the evidence both at trial and on appeal shows that there was a small Muslim military presence, consisting mainly of armed civilians participating in a territorial defence unit from their homes in Ahmici and environs, this evidence does not substantiate the Appellant’s assertion that he had reason to believe that the ABiH intended to launch an attack along the Ahmici-Santici-Dubravica axis. The conclusion reached by the Trial Chamber was one that a reasonable trier of fact could have reached.

30. The Trial Chamber found that in addition to the Military Police and the Jokers , regular HVO units, in particular the Viteska Brigade and the Domobrani, took part in the fighting in the Ahmici area on 16 April 1993.^{( 1610 )} The evidence underlying this finding includes: (i) eyewitness testimony placing members of the Viteska Brigade, identifiable by their uniforms, insignia, or because they were local members of the HVO who were known to the witnesses;^{( 1611 )} (ii) documentary evidence, including an exhibit indicating that members of the Vite ska Brigade were stationed nearby on 14 April 1993,^{( 1612 )} and two HVO certificates documenting that during the attack on Ahmici some Vites ka Brigade soldiers were wounded in the exercise of their duties;^{( 1613 )} and (iii) circumstantial evidence attesting to HVO participation.^{( 1614 )}

31. The Appeals Chamber concluded that this finding was “tenuous”, without providing reasons to support its characterisation.^{( 1615 )} Having reached this conclusion, the Appeals Chamber then substitutes its own finding , based on the additional evidence, that the crimes in the Ahmici area were committed only by the Jokers and the Military Police 4th Battalion.^{( 1616 )} In doing so, the Appeals Chamber relies on Exhibits 1, 13, and 14 to the First Rule 115 Motion and Exhibits 1 and 14 to the Second Rule 115 Motion.

32. In my view, the conclusion of the Appeals Chamber is erroneous. Exhibit 1 to the First Rule 115 Motion is an SIS investigative report on the events in Ahmici , which states that the attack on the village was carried out by the Jokers, the Military Police, and “an attached squad of criminals”. The cover sheet of this document is dated 15 March 1994, but the contents of the document, dated 26 November 1993 , are very similar to trial Exhibit D410 also dated 26 November 2003. Interestingly , Exhibit D410 indicates that combat activities began in the morning of 16 April 1993 as a result of uncontrolled individuals and groups. Exhibit D410 specifically warns that international observers and journalists have visited the village and that “the European public will insist on conducting an investigation and determining the responsibility for the deeds committed.” The similar report, dated the same day, submitted as additional evidence, indicates that sporadic fighting began on 15 April 1993, but only developed into a fierce battle on 16 April 1993 after the Muslim Armed Forces attempted to take control of the Vitez-Busovaca road. The HVO forces are described as bringing a “counterattack” in which three persons were killed . These killings enraged their comrades and caused the cleansing of the village.

33. Exhibit 13 to the First Rule 115 Motion is a report on the fighting in Vitez dated 8 June 1993. This report, signed with an illegible signature, has not been shown to be credible or reliable and I would not place any weight upon it.

34. Exhibit 14 to the First Rule 115 Motion, an HIS Report reviewing two foreign newspaper accounts concerning responsibility for the attack on Ahmici dated 21 March 1994, is substantially similar to Exhibit 13’s account of the attack on Ahmici. Notably, both reports rely on the same account of Zoran Kristo, who claims that he bombed the mosque in Ahmici. This report also supports the theory that the attack was committed by the Military Police, the Jokers, and criminals. The Report explains that the “mop up” operation was a counterattack resulting from an earlier conflict with the Muslim armed forces in which three HVO soldiers were killed. The Report categorically states that Mario Cerkez was not involved in the massacre. I note that the scope of this report is limited to reacting to the two newspaper articles and that it does not purport to provide a detailed account of the events.

35. The additional evidence suggesting that the attack on Ahmici and surrounding villages was a spontaneous revenge attack is unconvincing in light of the substantial trial evidence relied on by the Trial Chamber that demonstrated that the attack was planned and organised at high levels in the military hierarchy. Indeed, the theory of rogue individuals avenging the deaths of their colleagues is inconsistent with the Appellant’s own testimony at trial that the attack was organized and “it could not have been done by a group of three or four drunken … soldiers.”^{( 1617 )} In my opinion, this additional evidence, when considered in context, does not demonstrate that the Trial Chamber erred.

36. As I have explained above, I consider that Exhibit 1 to the Second Rule 115 Motion is neither credible nor reliable, since it was prepared in response to the Trial Judgement and it is neither complete nor verified.

37. Exhibit 14 to the Second Rule 115 Motion, the “War Diary”, recounts that at 9:00 a.m. on 16 April 1993, orders were given to the commander of the Viteska Brigade , Mario Cerkez, to “block the shooting … on the fire station building in Vitez.”^{( 1618 )} I am of the view that this contemporaneous record of events is generally reliable for the notations contained therein. However, I would not necessarily expect that illegal orders or information involving potentially inculpatory events, such as meetings or telephone calls with particular persons, would be indicated in such a document.

38. In rebuttal, the Prosecution has adduced a series of communications between the Appellant and Cerkez, which are submitted to demonstrate that the Viteska Brigade was involved in the capture of Ahmici on 16 April 1993. In PA6, a Report dated 10 :00 a.m. 16 April 1993, Brigade Commander Cerkez reported to the Appellant that “Our forces are advancing … in Ahmici”. This corresponds with PA7, a response from the Appellant at 10:35 a.m., in which he told Cerkez to “capture the villages of … Ahmici … completely”. In PA8, Cerkez reported that “the village of Ahmici is also 70% done and we have arrested 14…”. The Appellant then instructed Cerkez to continue these activities.^{( 1619 )} During oral argument, Counsel for the Appellant submitted that Exhibit PA6 is simply a report on the situation in the area of responsibility and does not demonstrate that the Viteska Brigade was in Ahmici, and claimed that reference to “our forces” is a reference to the Croatian forces.^{( 1620 )} In response , the Prosecution contended that it would be illogical for the commander of the Viteska Brigade to give a report about Ahmici if his forces were not there, and submitted that Exhibits PA6, PA7, PA8, and PA10 contradict the Appellant’s testimony at trial that the Viteska Brigade did not receive any tasks from him in the area of Ahmici.^{( 1621 )}

39. The additional evidence, considered in light of the evidence at trial, does not demonstrate that a reasonable trier of fact could not have concluded that the Viteska Brigade participated in the attacks in the Ahmici area. The only reliable piece of additional evidence, the War Diary, shows that at 9:00 a.m., some hours after the attack began, Cerkez was ordered to take action at the fire station in Vitez. Prosecution rebuttal Exhibits PA6, PA7, PA8, and PA10 serve to support the Trial Chamber’s conclusion that the Viteska Brigade was involved in the attacks. There is no credible and reliable additional evidence which contradicts the Trial Chamber’s finding that the Domobrani, who were also under the orders of the Appellant ,^{( 1622 )} participated in the attacks of 16 April 1993.

40. The Appeals Chamber notes that some of the additional evidence points to the participation of other leaders in planning and ordering the attack on the Ahmici area on 16 April 1993.^{( 1623 )} This observation relies on Exhibit 13 to the First Rule 115 Motion and Exhibit 1 to the Second Rule 115 Motion, both of which I find to be neither credible nor reliable . While making these observations, the Appeals Chamber does not draw any conclusion in relation to how the involvement of others impacts upon the role played by the Appellant.

41. In any event, this inquiry is misconceived. There is no legal requirement that a person giving orders be a sole decision-maker or be the highest or only person in a chain of command. It is entirely possible that a commander, who is himself acting on the orders of a hierarchical superior, or who is acting in concert with , or at the behest of other political or military leaders, may nevertheless be criminally responsible for ordering crimes.

42. With respect to this issue, I note that there is evidence on the record concerning communication and coordination between the Appellant and Kordic on 16 April 1994 .^{( 1624 )} Similarly, there is evidence on the record concerning the relationship between the Appellant and Ljubicic, including a substantial number of orders addressed to the Military Police dating from September 1992 to March 1994^{( 1625 )} and a series of reports from Ljubicic addressed or copied to the Appellant.^{( 1626 )} Thus, even after considering the additional evidence which suggests that other actors may have been involved, I would still conclude on the totality of the evidence on the record that the Trial Chamber was reasonable in finding that the Accused was criminally responsible for ordering the attack on the Ahmici area on 16 April 1993 .

43. The primary conclusion of the Trial Chamber was that the Accused ordered the attack with the clear intention that a massacre would be committed. The Trial Chamber found beyond a reasonable doubt that Ahmici and the other villages “had been the object of a planned attack on the Muslim population on 16 April 1993.”^{( 1627 )} The Trial Chamber relied on several factors in concluding beyond a reasonable doubt that the attack on civilians, which in other places in the Trial Judgement is referred to as a massacre, was planned and organised at a high level of the military hierarchy .^{( 1628 )}

44. First, the Trial Chamber noted that the attack was consistent with political declarations, ultimatums, and warnings made by the Croatian political and military authorities.^{( 1629 )} In addition, the Trial Chamber considered the special symbolic significance of Ahmici and its Mosque to the Muslim community in Croatia.^{( 1630 )} The Trial Chamber found that Croatian inhabitants were warned of the attack and that preparations for the attack included the imposition of a curfew, the closing of schools, the evacuation of Croatian women and children, and the holding of rallies and meetings.^{( 1631 )} During this time , certain members of the Croatian population warned their Muslim friends to hide or to leave the villages.^{( 1632 )} The Trial Chamber also considered the evidence that “the attack occurred from three sides and was designed to force the fleeing population towards the south where elite marksmen, with particularly sophisticated weapons, shot those escaping”,^{( 1633 )} while other small groups of attackers moved from house to house, insulting the Muslim inhabitants before killing them and burning their houses.^{( 1634 )}

45. In addition, the Trial Chamber found that the Appellant knew that his troops were previously involved in committing crimes against Muslim civilians and that he “did not ensure himself, before calling on their services on 16 April, that measures had indeed been taken so as to be sure that those criminal elements were not in a position to do any harm.”^{( 1635 )} The Trial Chamber found that “his subordinates clearly understood that certain types of illegal conduct were acceptable and would not lead to punishment”.^{( 1636 )} The Trial Chamber also took the content of the orders issued by the Appellant into account, noting that the reasons adduced in D269 to justify the attack were “based on propaganda designed to incite racial hatred.”^{( 1637 )}

46. In my view, it was reasonable for the Trial Chamber to conclude, on the basis of the totality of the evidence on the trial record, that the Appellant ordered troops under his command to participate in the attack directed at the Muslim civilian population in Ahmici and the neighbouring villages on 16 April 1993. There is nothing in the additional evidence that demonstrates this conclusion to be unreasonable. I would therefore have affirmed his conviction for ordering the crimes that occurred during the attack on the Ahmici area on 16 April 1993.

47. The correct standard of review, even in cases involving additional evidence, is whether a reasonable tribunal of fact could have reached the Trial Chamber’s factual conclusion. Applying this standard, and analysing the additional evidence together with the trial record, I conclude that it has not been shown that no reasonable tribunal of fact could have assessed the evidence as the Trial Chamber did.

48. Applying the standard of review well established by the jurisprudence of the International Tribunal, I would affirm the Trial Chamber’s finding that the Appellant was guilty beyond a reasonable doubt of ordering the crimes committed in the Ahmi ci area on 16 April 1993 pursuant to Article 7(1) of the Statute.

49. For similar reasons, I would affirm other factual findings in the Trial Judgement .

50. As a consequence, I do not agree with the new sentence imposed by the Appeals Chamber.

__________________________

Judge Weinberg de Roca

Done this 29th day of July 2004,
At The Hague,
The Netherlands.

1. The Trial Judgement was rendered on 3 March 2000. In accordance with Rule 108 of the Rules, the Appellant filed his Notice of Appeal on 17 March 2000.^{( 1638 )}

2. The Appellant filed a motion on 4 April 2000, pursuant to Rule 127(B) of the Rules, for the suspension of the briefing schedule as set out by Rule 111, or alternatively , for an extension of time to file his appellant’s brief.^{( 1639 )} This motion was partially granted by an order issued by the Appeals Chamber on 19 May 2000.^{( 1640 )} On 16 October 2001 , the Appeals Chamber issued an order, pursuant to Rule 111 of the Rules, whereby it considered that the briefing schedule should be resumed and instructed the Appellant to file his appellant’s brief by 30 November 2001.^{( 1641 )}

3. On 27 June 2000, the Appellant filed a confidential motion to suspend the briefing schedule.^{( 1642 )} The Prosecution filed a confidential response on 7 July 2000.^{( 1643 )} On 20 July 2000, the Appellant filed under seal an additional filing regarding his Supplemental Filing.^{( 1644 )} The Prosecution filed a confidential response to the Appellant’s Additional Supplemental Filing on 31 July 2000.^{( 1645 )}

4. On 26 September 2000, the Appeals Chamber issued a decision whereby it suspended the briefing schedule, until the translation of the documents, which the Appellant submitted to the Registry through the Supplemental Filing and the Additional Supplemental Filing, was completed.^{( 1646 )} This decision also ordered the Appellant to indicate by motion his intention to seek the admission of documents as additional evidence on appeal pursuant to Rule 115 of the Rules, and to specify which documents he would submit under Rule 115. The decision set out a schedule for the parties to make submissions on the applicability of Rule 115.^{( 1647 )}

5. The Appellant filed a motion on 26 October 2001 to extend the deadline for filing his appellant’s brief and to exceed the applicable page limit for the brief,^{( 1648 )} and, on 5 November 2001, the Prosecution filed a response to this motion.^{( 1649 )} On 7 November 2001, the Appeals Chamber issued a decision authorizing a page limit of a maximum of two hundred pages and granting the Appellant an extension of time until 14 January 2002 to file his appellant’s brief.^{( 1650 )}

6. Pursuant to Rule 111 of the Rules, the Appellant filed his Brief on Appeal confidentially on 14 January 2002^{( 1651 )} and a public redacted version on 7 March 2002.^{( 1652 )} Pursuant to an order issued by Judge Pocar, Pre-Appeal Judge, on 21 February 2002 , the Appellant re-filed a public version of his Brief on Appeal with redactions on 4 July 2002.^{( 1653 )} On 4 February 2002, he filed an appendix of non-Tribunal authorities cited in his Appellant’s Brief^{( 1654 )} and an appendix of additional non-Tribunal authority on 3 June 2002.^{( 1655 )}

7. The Prosecution filed its Respondent’s Brief on 30 April 2002, pursuant to a decision dated 29 January 2002 granting an extension of time.^{( 1656 )} The Prosecution filed its Book of Authorities on 1 May 2002^{( 1657 )} and a public redacted version of its Respondent’s Brief on 14 June 2002.^{( 1658 )} The Prosecution filed a confidential motion regarding clarifications to its respondent’s brief and objections to the scope of the Appellant’s Reply Brief on 26 June 2002 ,^{( 1659 )} and the Appellant filed a confidential response on 8 July 2002.^{( 1660 )} The Appeals Chamber dismissed the Prosecution’s motion in part and accepted the motion in part on 24 September 2002.^{( 1661 )}

8. On 24 April 2002, the Appellant filed a motion seeking an extension of time and authorization to exceed the applicable page limit regarding his reply brief, which Judge Pocar, Pre-Appeal Judge, dismissed because it was filed prematurely.^{( 1662 )} On 3 May 2002, the Appellant filed a motion seeking an extension of time and authorization to exceed the applicable page limit regarding his reply brief.^{( 1663 )} On 7 May 2002, Judge Pocar, Pre-Appeal Judge, issued a decision granting the Appellant’s motion and authorising the Appellant to file a reply brief of no more than sixty pages by 3 June 2002.^{( 1664 )} Pursuant to Rule 113, the Appellant filed confidentially his Brief in Reply on 3 June 2002 ,^{( 1665 )} and a public version on 14 June 2002.^{( 1666 )}

9. On 1 December 2003, the Appellant filed confidentially his Supplemental Brief .^{( 1667 )} Following an authorization to exceed the applicable page limit,^{( 1668 )} he filed a redacted public version of his Supplemental Brief on 22 March 2004.^{( 1669 )}

10. On 1 December 2003, the Prosecution filed a request for authorization to exceed the applicable page limit regarding its Supplemental Filing.^{( 1670 )} On 8 December 2003, the Prosecution filed confidentially the “Prosecution’s Re-filed Supplemental Filing.” On 16 December 2003, the Appeals Chamber issued a decision rejecting the Prosecution’s re-filed Supplemental Filing in its entirety because it did not adhere to the requirements of the Practice Direction on Length of Briefs and Motions, IT/184 Rev.1.^{( 1671 )}

11. During the appellate proceedings, the Appellant filed four separate motions pursuant to Rule 115,^{( 1672 )} seeking to admit more than 8000 pages of material as additional evidence on appeal. The first motion sought the admission of government documents from the Republic of Croatia , including the Croatian Information Service, the Croatian Ministry of Defence, the Office of the President of Croatia, and the Croatian Community of Herceg-Bosna . The evidence sought to be admitted in the second motion consisted of thirteen documents disclosed to the Appellant by the Prosecution under Rule 68 of the Rules after the Trial Chamber issued the Trial Judgement: two documents from the Croatian State Archives, nine exhibits tendered in another trial, and portions of testimony of sixteen witnesses who testified in another trial. In general, the first two additional evidence motions purported to challenge certain conclusions of the Trial Chamber regarding the responsibility of the Appellant for crimes committed during April and July 1993 in Ahmici, Stari Vitez, Busovaca, and Kiseljak. The third motion was filed confidentially. The fourth motion was filed confidentially; with a public redacted version, which contained evidence disclosed by the Prosecution pursuant to Rule 68, as well as documents from the archives of the Republic of Bosnia-Herzegovina .

12. On 29 December 2000, the Appellant filed a motion to admit additional evidence on appeal pursuant to Rule 115 of the Rules.^{( 1673 )} The Prosecution filed a response to this motion on 8 January 2001.^{( 1674 )}

13. On 19 January 2001, the Appellant filed a brief in support of his first motion to admit additional evidence on appeal pursuant to Rule 115 of the Rules.^{( 1675 )} On 22 January 2001, the Appellant filed an index of 288 new exhibits accompanying the First Rule 115 Motion.^{( 1676 )} The Appellant filed his errata to this brief, concerning official English translations of the newly available evidence, on 22 March 2001.^{( 1677 )}

14. Pursuant to orders granting extensions of time,^{( 1678 )} the Prosecution filed confidentially on 19 April 2001, its response to the Appellant’s First Rule 115 Motion.^{( 1679 )} Pursuant to an order issued on 6 September 2001 by Judge Pocar, Pre-Appeal Judge,^{( 1680 )} the Prosecution filed a public version of its response to the Appellant’s First Rule 115 Motion on 13 September 2001.^{( 1681 )}

15. Following decisions granting extensions of time,^{( 1682 )} the Appellant, on 18 June 2001, filed confidentially his reply memorandum in support of his First Rule 115 Motion,^{( 1683 )} along with the accompanying declarations and exhibits.^{( 1684 )} On 13 September 2001, the Appellant filed a response to the 6 September 2001 order ,^{( 1685 )} in addition to a public version of his reply memorandum,^{( 1686 )} and the declarations and exhibits attached thereto.^{( 1687 )}

16. Upon authorisation to exceed the applicable page limit,^{( 1688 )} the Appellant filed confidentially on 18 October 2001 his second motion to admit additional evidence on appeal pursuant to Rule 115 of the Rules.^{( 1689 )} Following an order granting an extension of time and authorization to exceed the applicable page limit,^{( 1690 )} the Prosecution submitted its response on 10 December 2001.^{( 1691 )}

17. Following a decision granting an extension of time,^{( 1692 )} the Appellant filed confidentially his reply brief in relation to his Second Rule 115 Motion on 7 January 2002.^{( 1693 )} Public redacted versions of the Second Rule 115 Motion^{( 1694 )} and the Prosecution’s Response to the Appellant’s Second Rule 115 Motion^{( 1695 )} were filed on 7 March 2002. A redacted version of the Appellant’s Reply Brief in Support of his Second Rule 115 Motion was also filed on 7 March 2002.^{( 1696 )}

18. Upon authorization to exceed the applicable page limit,^{( 1697 )} the Appellant filed confidentially his third motion to admit additional evidence on appeal pursuant to Rule 115 of the Rules,^{( 1698 )} and exhibits^{( 1699 )} on 10 June 2002 . Following two decisions granting an extension of time,^{( 1700 )} the Prosecution, on 12 August 2002, filed confidentially its response to the Appellant’s Third Rule 115 Motion.^{( 1701 )}

19. Following an order granting an extension of time and authorization to exceed the applicable page limit,^{( 1702 )} the Appellant filed confidentially his reply memorandum in support of his Third Rule 115 Motion on 9 September 2002.^{( 1703 )} The Appellant also filed supplemental declarations in support of his reply memorandum confidentially on 9 September 2002.^{( 1704 )} The Prosecution filed a confidential request for leave to file a supplemental response to the Appellant’s Third Rule 115 Motion on 9 October 2002,^{( 1705 )} and the Appellant filed a confidential response to this request on 21 October 2002 .^{( 1706 )} The Prosecution’s request was denied on 31 October 2002.^{( 1707 )}

20. The Prosecution filed a confidential motion to disallow evidence filed for the first time in the reply brief to the Appellant’s Third Rule 115 Motion on 18 September 2002.^{( 1708 )} The Appellant filed a response to this motion confidentially on 30 September 2002,^{( 1709 )} and the Prosecution filed a confidential reply on 4 October 2002.^{( 1710 )} The Appeals Chamber issued a confidential decision on the Prosecution’s motion on 28 November 2002.^{( 1711 )}

21. Upon authorization to exceed the applicable page limit,^{( 1712 )} on 12 May 2003, the Appellant filed confidentially his fourth motion to admit additional evidence on appeal pursuant to Rule 115 of the Rules.^{( 1713 )} On 20 May 2003, the Appellant filed confidential exhibits in support of his Fourth Rule 115 Motion.^{( 1714 )} The Appellant filed a confidential, corrected version of his Fourth Rule 115 Motion on 13 June 2003;^{( 1715 )} a public redacted version on 8 August 2003;^{( 1716 )} and exhibits in support of his motion on 11 August 2003.^{( 1717 )}

22. Upon authorization to exceed the applicable page limit,^{( 1718 )} the Prosecution filed confidentially its response to the Appellant’s Fourth Rule 115 Motion on 18 June 2003.^{( 1719 )} A corrected version of its response was filed on 30 June 2003,^{( 1720 )} and a public redacted version on 21 August 2003.^{( 1721 )}

23. Upon authorization to exceed the applicable page limit,^{( 1722 )} the Appellant filed his confidential reply brief in support of his Fourth Rule 115 Motion on 30 June 2003.^{( 1723 )} Pursuant to an order issued by the Appeals Chamber on 28 January 2004,^{( 1724 )} the Appellant filed on 9 February 2004, a supplemental redacted reply brief in support of his Fourth Rule 115 Motion,^{( 1725 )} and a supplemental redacted corrected version of his Fourth Rule 115 Motion.^{( 1726 )}

24. On 27 July 2004, the Appellant filed confidentially a “Request for Emergency Hearing”, whereby he submitted that the Prosecution had produced exculpatory evidence and requested a hearing on the matter.

25. The Appeals Chamber instructed the Prosecution to file material rebutting the clearly admissible evidence identified in the Scheduling Order dated 31 October 2002, by 6 January 2003.^{( 1727 )} On 7 January 2003, the Prosecution filed a request for an extension of time for filing its rebuttal material and accompanying arguments and for authorisation to exceed the applicable page limit,^{( 1728 )} and its rebuttal evidence and arguments in relation to the Appellant’s first three Rule 115 Motions.^{( 1729 )} The Appeals Chamber recognised the First Filing as valid on 9 January 2003.^{( 1730 )} A public redacted version of its First Filing was filed on 24 January 2003.^{( 1731 )}

26. Following two decisions granting extensions of time,^{( 1732 )} the Appellant filed confidentially his opposition to the First Filing on 3 March 2003.^{( 1733 )} A public redacted version of the Appellant’s Opposition to the First Filing was filed on 7 April 2003.^{( 1734 )}

27. Judge Pocar, Pre-Appeal Judge, held a status conference on 24 June 2003, at which the parties agreed that the Prosecution would file its rebuttal material regarding the Appellant’s Fourth Rule 115 Motion within three weeks of that date. On 16 July 2003, the Prosecution filed confidentially its rebuttal material and arguments in response to the Appellant’s Fourth Rule 115 Motion.^{( 1735 )} On 22 August 2003, the Prosecution filed a public redacted version of its Second Filing.^{( 1736 )}

28. On 24 July 2003, the Appeals Chamber granted an extension of time for the Appellant to file his response to the Prosecution’s Second Filing.^{( 1737 )} The Appellant filed confidentially his response to the Prosecution’s Second Filing on 4 August 2003.^{( 1738 )}

29. On 15 August 2003, the Prosecution filed confidentially its reply to the Appellant’s Opposition to the Second Filing^{( 1739 )} and a public redacted version on 22 August 2003.^{( 1740 )} On 25 August 2003, Judge Pocar, Pre-Appeal Judge, issued an order recognizing as valid the filing of the Prosecution’s Reply to the Appellant’s Opposition to the Prosecution’s Second Filing and directing the Appellant to file a further reply by 1 September 2003.^{( 1741 )} On 1 September 2003, the Appellant filed confidentially a further reply.^{( 1742 )} A confidential supplemental redacted Sur-Reply was filed on 9 February 2004.^{( 1743 )}

30. On 27 July 2004, the Prosecution filed confidentially the “Prosecution’s Urgent Motion for the Admission of Rebuttal Evidence”, in which it sought to admit a report . On 28 July 2004, the Appeals Chamber issued the confidential “Decision on Prosecution’s Urgent Motion for the Admission of Rebuttal Evidence,” rejecting the motion.

31. On 21 November 2002, and pursuant to the Scheduling Orders of 31 October 2002 and 14 November 2002, the Appeals Chamber held a hearing during which the parties presented oral argument on whether the clearly admissible evidence justified a new trial by a Trial Chamber, on some or all of the counts charged in the Indictment .^{( 1744 )} The Appellant filed his Book of Authorities on 15 November 2002,^{( 1745 )} and the Prosecution filed its Book of Authorities on 18 November 2002.^{( 1746 )} On 31 October 2003, the Appeals Chamber ruled that a re-trial was not warranted.^{( 1747 )}

32. On 31 October 2002, the Appeals Chamber set out those items of additional evidence submitted on appeal which it considered were “clearly admissible.”^{( 1748 )} On 31 October 2003, the Appeals Chamber issued its decision on the Appellant’s First , Second, and Fourth Rule 115 Motions, whereby it admitted 108 items as additional evidence and rebuttal material.^{( 1749 )} On 28 July 2004, the Appeals Chamber issued a confidential “Decision on Appellant Tihomir Blaskic’s Request for Emergency Hearing,” whereby the Appeals Chamber interpreted the Appellant’s request as a motion pursuant to Rule 115 of the Rules with respect to two of the exhibits proffered therein, and rejected the request.

33. The Appeals Chamber has been seised of several requests for access to confidential material pursuant to Rule 75 of the Rules filed by the Prosecution, the Appellant , and other accused and appellants, particularly from related Lasva Valley cases . In addressing these numerous requests, the Appeals Chamber issued twenty decisions and orders, regarding access to confidential material and variation of protective measures.^{( 1750 )}

34. On 12 April 2000, the then-Vice President of the International Tribunal, Judge Mumba, exercised the functions of the President pursuant to Rule 21 of the Rules , issuing an order assigning the following Judges to the Appeals Chamber, subject to Rule 22(B) of the Rules: Judges Vohrah, Nieto-Navia, Wald, Pocar, and Liu.^{( 1751 )} On 8 June 2000, the then-Presiding Judge, Judge Vohrah, designated Judge Pocar as the Pre-Appeal Judge in this case.^{( 1752 )}

35. On 23 November 2001, pursuant to Article 14 of the Statute of the International Tribunal and Rule 27 of the Rules, Judge Jorda, the then-President of this Tribunal , issued an order composing the bench of the Appeals Chamber in this case as follows : Judges Hunt, Güney, Gunawardana, Pocar, and Meron.^{( 1753 )}

36. On 18 June 2003, Judge Meron, President of the International Tribunal, issued an order assigning Judge Weinberg de Roca to replace Judge Gunawardana on the case and composing the bench of the Appeals Chamber in this case as follows: Judges Meron , Pocar, Hunt, Güney, and Weinberg de Roca.^{( 1754 )}

37. On 6 August 2003, Judge Meron, President of the International Tribunal, issued an order pursuant to Articles 12(3) and 14(3) of the Statute of the International Tribunal and Rule 27 of the Rules, assigning Judge Schomburg to replace Judge Hunt on the bench of the Appeals Chamber and composing the bench of the Appeals Chamber in this case as follows: Judges Meron, Pocar, Güney, Schomburg, and Weinberg de Roca.^{( 1755 )}

38. On 9 September 2003, Judge Meron, President of the International Tribunal, issued an order pursuant to Articles 12(3) and 14(3) of the Statute of the International Tribunal and Rule 27 of the Rules, assigning Judge Mumba to replace himself on the bench of the Appeals Chamber and composing the bench of the Appeals Chamber in this case as follows: Judges Pocar, Mumba, Güney, Schomburg, and Weinberg de Roca.^{( 1756 )}

39. On 3 October 2003, Judge Pocar issued an Order noting that, pursuant to Rule 22(B) of the Rules, he had been elected as Presiding Judge of the Appeals Chamber in this Appeal and reaffirming his status as the Pre-appeal Judge, pursuant to Rule 65ter and Rule 107 of the Rules.^{( 1757 )}

40. Status Conferences were held in accordance with Rule 65bis of the Rules on 4 July 2000; 26 October 2000; 21 February 2001; 18 June 2001; 18 October 2001 ; 14 February 2002; 3 June 2002; 3 October 2002; 26 February 2003; 24 June 2003; 28 October 2003; and 29 March 2004.

41. After issuing its decision on the admission of additional evidence on appeal , and in light of the fact that transcripts of witness testimony were admitted pursuant to Rule 115 of the Rules, the Appeals Chamber decided to hear six witnesses during the evidentiary portion of the hearing on appeal, which took place from 8 to 11 December 2003, pursuant to the Appeals Chamber’s Scheduling Order of 31 October 2003^{( 1758 )} as amended by the Scheduling Orders of 18 November 2003^{( 1759 )} and of 2 December 2003.^{( 1760 )} The Appeals Chamber heard final oral arguments on 16 and 17 December 2003.

42. On 13 April 2004 the Appellant filed a confidential Notice of Substitution of Counsel, informing the Appeals Chamber that he had substituted Mr. Russell Hayman and McDermont, Will and Emery as his attorney of record and that, consequently, Mr. Andrew Paley and Latham and Watkins LLP were no longer appearing as co-counsel for the Appellant.^{( 1761 )}

ALEKSOVSKI

Aleksovski Trial Judgement Prosecutor v. Zlatko Aleksovski, Case No .: IT-95-14/1-T, Judgement, 25 June 1999

Aleksovski Appeal Judgement Prosecutor v. Zlatko Aleksovski, Case No.: IT-95-14/1-A, Judgement, 24 March 2000

BABIC

Babic Sentencing Judgement Prosecutor v. Milan Babic, Case No.: IT -03-72-S, Sentencing Judgement, 29 June 2004

BLASKIC

Trial Judgement Prosecutor v. Tihomir Blaskic, Case No.: IT-95-14-T, Judgement , 3 March 2000

CELEBICI

Celebici Trial Judgement Prosecutor v. Zejnil Delalic, Zdravko Mucic, a.k.a. “Pavo”, Hazim Delic and Esad Landzo, a.k.a. “Zenga”, Case No.: IT-96- 21-T, Judgement, 16 November 1998

Celebici Appeal Judgement Prosecutor v. Zejnil Delalic, Zdravko Mucic, a.k.a. “Pavo”, Hazim Delic and Esad Landzo, a.k.a. “Zenga”, Case No.: IT-96- 21-A, Judgement, 20 February 2001

FURUNDZIJA

Furundzija Trial Judgement Prosecutor v. Anto Furundzija, Case No.: IT-95-17/1-T, Judgement, 10 December 1998

Furundzija Appeal Judgement Prosecutor v. Anto Furundzija, Case No .: IT-95-17/1-A, Judgement, 21 July 2000

GALIC

Galic Trial Judgement Prosecutor v. Stanislav Galic, Case No.: IT- 98-29-T, Judgement and Opinion, 5 December 2003

JELISIC

Jelisic Trial Judgement Prosecutor v. Goran Jelisic, Case No.: IT -95-10-T, Judgement, 14 December 1999

Jelisic Appeal Judgement Prosecutor v. Goran Jelisic, Case No.: IT -95-10-A, Judgement, 5 July 2001

JOKIC

Jokic Sentencing Judgement Prosecutor v. Miodrag Jokic, Case No.: IT-01-42/1-S, Sentencing Judgement, 18 March 2004

KORDIC AND CERKEZ

Kordic Trial Judgement Prosecutor v. Dario Kordic & Mario Cerkez, Case No.: IT-95-14/2-T, Judgement, 26 February 2001

KRNOJELAC

Krnojelac Trial Judgement Prosecutor v Milorad Krnojelac, Case No.: IT-97-25-T, Judgement, 15 March 2002

Krnojelac Appeal Judgement Prosecutor v Milorad Krnojelac, Case No .: IT-97-25-A, Judgement, 17 September 2003

KRSTIC

Krstic Trial Judgement Prosecutor v. Radislav Krstic, Case No.: IT -98-33-T, Judgement, 2 August 2001

Krstic Appeal Judgement Prosecutor v. Radislav Krstic, Case No.: IT -98-33-A, Judgement, 19 April 2004

KUNARAC

Kunarac Trial Judgement Prosecutor v. Dragoljub Kunarac et al., Case No.: IT-96-23-T & IT-96-23/1-T, Judgement, 22 February 2001

Kunarac Appeal Judgement Prosecutor v. Dragoljub Kunarac et al., Case No.: IT-96-23-A & IT-96-23/1-A, Judgement, 12 June 2002

KUPRESKIC

Kupreskic Trial Judgement Prosecutor v. Zoran Kupreskic, Mirjan Kupreskic , Vlatko Kupreskic, Drago Josipovic, Dragan Papic and Vladimir Santic, a.k.a. “Vlado , Case No.: IT-95-16-T, Judgement, 14 January 2000

Kupreskic Appeal Judgement Prosecutor v. Zoran Kupreskic, Mirjan Kupreskic , Vlatko Kupreskic, Drago Josipovic and Vladimir Santic, Case No.: IT-95-16- A, Judgement, 23 October 2001

KVOCKA

Kvocka Trial Judgement Prosecutor v. Miroslav Kvocka, Milojica Kos, Mlado Radic, Zoran Zigic and Dragoljub Prcac, Case No.: IT-98-30/1-T, Judgement, 2 November 2001

NALETILIC

Naletilic Trial Judgement Prosecutor v. Mladen Naletilic and Vinko Martinovi c, Case No.: IT-98-34-T, 31 March 2003

PLAVŠIC

Plavsic Sentencing Judgement Prosecutor v. Biljana Plavsic, Case No .: IT-00-39&40/1-S, Sentencing Judgement, 27 February 2003

SIKIRICA

Sikirica Sentencing Judgement Prosecutor v. Dusko Sikirica et.al., Case No.: IT-95-8-S, Sentencing Judgement, 13 November 2001

SIMIC

Simic Trial Judgement Prosecutor v. Blagoje Simic et.al., Case No.: IT-95-9-T, Judgement 17 October 2003

STAKIC

Stakic Trial Judgement Prosecutor v. Milomir Stakic, Case No.: IT- 97-24-T, Judgement, 31 July 2003

TADIC

Tadic Jurisdiction Decision Prosecutor v. Dusko Tadic, Case No.: IT -94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction , 2 October 1995

Tadic Trial Judgement Prosecutor v. Dusko Tadic, Case No.: IT-94-1 -T, Judgement, 7 May 1997

Tadic Appeal Judgement Prosecutor v. Dusko Tadic, Case No.: IT-94- 1-A, Judgement, 15 July 1999

Tadic Judgement in Sentencing Appeals Prosecutor v. Dusko Tadic, Case No.: IT-94-1-A & IT-94-1-Abis, Judgement in Sentencing Appeals, 26 January 2000

TODOROVIC

Todorovic Sentencing Judgement Prosecutor v. Stevan Todorovic, Case No.: IT-95-9/1-S, Sentencing Judgement, 31 July 2001

VASILJEVIC

Vasiljevic Trial Judgement Prosecutor v. Mitar Vasiljevic, Case No .: IT-98-32-T, Judgement, 29 November 2002

Vasiljevic Appeal Judgement Prosecutor v. Mitar Vasiljevic, Case No.: IT-98-32-A, Judgement, 25 February 2004

AKAYESU

Akayesu Trial Judgement Prosecutor v. Jean-Paul Akayesu, Case No.: ICTR-96-4-T, Judgement, 2 September 1998

Akayesu Appeal Judgement Prosecutor v. Jean-Paul Akayesu, Case No.: ICTR-96-4-A, Judgement, 1 June 2001

BAGILISHEMA

Bagilishema Appeal Judgement Prosecutor v. Ignace Bagilishema , Case No.: ICTR-95-1A-

A, Judgement (Reasons), 3 July 2002

KAMBANDA Prosecutor v. Jean Kambanda, Case No.: ICTR-97-23 -S,

Kambanda Judgement and Sentence, 4 September 1998

KAYISHEMA AND RUZINDANA

Kayishema and Ruzindana Prosecutor v. Clément Kayishema & Obed Ruzindana ,

Trial Judgement Case No.: ICTR-95-T, Judgement, 21 May 1999

Kayishema and Ruzindana Prosecutor v. Clément Kayishema & Obed Ruzindana ,

Appeal Judgement Case No.: ICTR-95-1-A, Judgement (Reasons), 1 June 2001

MUSEMA

Musema Trial Judgement Prosecutor v. Alfred Musema, Case No.: ICTR -96-13-T, Judgement, 27 January 2000

Musema Appeal Judgement Prosecutor v. Alfred Musema, Case No.: ICTR -96-13-A, Judgement, 16 November 2001

SERUSHAGO

Serushago Sentencing Judgement Prosecutor v. Omar Serushago, Case No. ICTR-98-39-A, Sentence, 5 February 1999

THE GERMAN HIGH COMMAND TRIAL

The German High Command Trial Case No. 72, Law Reports of the Trials of War Criminals, (30 December 1947 – 28 October 1948), Vol. XII, p. 1.

Law Reports Digest of Laws and Cases Law Reports of the Trials of War Criminals , (30 December 1947 – 28 October 1948), Vol. XV

According to Rule 2 (B), of the Rules of Procedure and Evidence, the masculine shall include the feminine and the singular the plural, and vice-versa.

21 November 2002 Hearing	Oral submissions by the parties on issue of whether a new trial was warranted.
ABiH	Armed Forces of the Government of Bosnia and Herzegovina
Additional Protocol I	Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977
Additional Protocol II	Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977
Appellant	Tihomir Blaskic and his counsel on appeal
Appellant’s Brief	Prosecutor v. Tihomir Blaskic, Case No.: IT-95-14-A, Appellant’s Brief on Appeal (confidential), 14 January 2002; the revised, redacted version was filed on 4 July 2002. All references to the Appellant's Brief in the Judgement are references to the revised, redacted version filed on 4 July 2002.
AT	Transcript of the appeal hearing
BCS	Bosnian Croatian Serbian language
Bosnia and Herzegovina	Republic of Bosnia and Herzegovina
Brief in Reply	Prosecutor v. Tihomir Blaskic, Case No.: IT-95-14-A, Appellant’s Brief in Reply (confidential), 3 June 2002; the public version was filed on 14 June 2002
BRITBAT	UNPROFOR British Battalion
Cassesse, A. International Criminal Law	Cassesse, A. International Criminal Law Oxford (2003)
CBOZ	Central Bosnia Operative Zone
Commentary to Geneva Convention III	Commentary, III Geneva Convention relative to the Treatment of Prisoners of War (1949), International Committee of the Red Cross, Geneva, 1960
Commentary to Geneva Convention IV	Commentary, IV Geneva Convention relative to the Protection of Civilian Persons in Time of War (1949), International Committee of the Red Cross, Geneva, 1958
Common Article 3	Article 3 of Geneva Conventions I through IV
Croatia	Republic of Croatia
D	Defence, as in Ex. D999 denotes Defence Exhibit 999
Decision on Evidence	Prosecutor v. Tihomir Blaškić, Case No.: IT-95-14-A, Decision on Evidence, 31 October 2003
Defence exhibits	Exhibits tendered by the Defence and admitted into evidence by the Chamber
Dzokeri or Jokers	A unit within the 4th Battalion of the Military Police
ECHR	European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950
ECMM	European Community Monitor Mission
European Convention on Human Rights	European Convention for the Protection of Human
	Rights and Fundamental Freedoms signed in Rome on 4 November 1950
Eur Ct HR	European Court of Human Rights
Ex.	Exhibit
First Filing	Prosecutor v. Tihomir Blaskic, Case No.: IT-95-14-A, Rebuttal Evidence and Arguments in Response to Additional Evidence Admitted on Appeal, (confidential) 7 January 2003
First Rule 115 Motion	Prosecutor v. Tihomir Blaskic, Case No.: IT-95-14-A, Appellant’s Brief in Support of Motion to Admit Additional Evidence on Appeal Pursuant to Rule 115, in Accordance with the Appeals Chamber’s Decision of 6 September 2000, filed on 19 January 2001
Fourth Rule 115 Motion	Prosecutor v. Tihomir Blaskic, Case No.: IT-95-14-A, Appellant’s Fourth Motion to Admit Additional Evidence on Appeal Pursuant to Rule 115, (confidential) 12 May 2003
FRY	Federal Republic of Yugoslavia
Geneva Convention I	Geneva Convention I for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949
Geneva Convention II	Geneva Convention II for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949
Geneva Convention III	Geneva Convention III Relative to the Treatment of Prisoners of War of 12 August 1949
Geneva Convention IV	Geneva Convention IV Relative to the Protection of Civilian Person in Time of War of 12 August 1949
Geneva Conventions	Geneva Conventions I to IV of 12 August 1949
Hague Convention IV	The 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land of 18 October 1907
Hague Regulations	Regulations Respecting the Laws and Customs of War on Land annexed to Hague Convention IV of 18 October 1907
HDZ	Croatian Democratic Union
HDZ-BiH	Croatian Democratic Union of Bosnia and Herzegovina
HOS	Croatian Defence Forces (military wing of the Croatian Party of Rights)
HR H-B	Croatian Republic of Herceg-Bosna
HV	Army of the Republic of Croatia
HVO	Croatian Defence Council (army of the Bosnian Croats)
HZ H-B	Croatian Community of Herceg-Bosna
Rome Statute	Rome Statute of the International Criminal Court, Adopted at Rome on 17 July 1998, PCNICC/1999/INF/3
ICCPR	International Covenant on Civil and Political Rights, 1966
ICRC Commentary(Additional Protocols)	Y. Sandoz et al. (eds.), Commentary on the Additional
ICTR	International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens responsible for genocide and other such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994
ILC Report	Report of the International Law Commission on the work of its forty-eighth session, 6 May-26 July 1996, UNGA, Official Records, 51st Session, Supplement No.10 (A/51/10)
Indictment or Second Amended	Prosecutor v. Tihomir Blaskic, Case No.: IT-95-14-T,
Indictment	Second Amended Indictment, filed 26 March 1999
International Convention against	International Convention against the Taking of
the taking of hostages	Hostages, adopted by the General Assembly of the United Nations on 17 December 1979, U.N.T.S. Vol. 1316
International Tribunal	International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991
JNA	Yugoslav Peoples’ Army
Jokers or Dzokeri	A unit within the 4th Battalion of the Military Police
MP 4th Battalion	Fourth Battalion of the Military Police
MUP	Ministry of the Interior Police
N[Z Brigade	Nikola [ubic Zrinski Brigade
PA	Evidence admitted in the present appeal to rebut the additional evidence admitted by the Appeals Chamber pursuant to the 31 October 2003 Decision on Evidence; as in Ex. PA99 denotes Prosecution Rebuttal Material number 99.
P	Prosecution, as in Ex. P999 denotes Prosecution Trial Exhibit 999
Prosecution	The Office of the Prosecution
Prosecution Exhibits	Exhibits tendered by the Prosecutor and admitted into evidence by the Chamber
Report of the Secretary-General	Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808/1993
Respondent’s Brief	Prosecutor v. Tihomir Blaskic, Case No.: IT-95-14-A, Prosecution’s Response to the Defence Appeal Brief (confidential), 1 May 2002; the public version was filed on 14 June 2002
Rule 115 Decision	Prosecutor v. Tihomir Blaskic, Case No.: IT-95-14-A, Decision on Evidence, 31 October 2003
Rules	Rules of Procedure and Evidence of the Tribunal
Statute	Statute of the Tribunal
SDA	Party of Democratic Action
Second Filing	Prosecutor v. Tihomir Blaskic, Case No.: IT-95-14-A, Rebuttal Evidence and Arguments in Response to the Appellant’s Fourth Additional Evidence Motion on Appeal (confidential), 16 July 2003
Second Rule 115 Motion	Prosecutor v. Tihomir Blaskic, Case No.: IT-95-14-A, Appellants’ Second Motion to Admit Additional Evidence on Appeal Pursuant to Rule 115, (confidential) 18 October 2001
SFRY	Former Socialist Federal Republic of Yugoslavia
SIS	HVO Security and Information Service
Supplemental Brief	Prosecutor v. Tihomir Blaskic, Case No.: IT-95-14-A, Appellant’s Supplemental Brief on Appeal (confidential), 1 December 2003; redacted, public version was filed on 22 March 2004
T	Transcript of the trial hearings in the present case. All transcript pages referred to in this Judgement are taken from the unofficial, uncorrected version of the transcript. Minor differences may therefore exist between the pagination therein and that of the final transcript released to the public
Third Rule 115 Motion	Prosecutor v. Tihomir Blaskic, Case No.: IT-95-14-A, Appellant’s Third Motion to Admit Additional Evidence on Appeal Pursuant to Rule 115, (confidential) 10 June 2002
TO	Territorial Defence
Tribunal	See International Tribunal
UNPROFOR	United Nations Protection Forces
Viteška Brigade	See Vitez Brigade
Vitez Brigade	An HVO regular brigade located in Vitez and commanded by Mario Čerkez
Vitezovi	A special purpose unit located at the Dubravica school, and commanded by Darko Kraljevic and his deputy Niko Krizanac. Its members were former HOS members.