Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                           Tuesday, 5 May 2009

 2                           [Appeals Judgement]

 3                           [Open session]

 4                           [The appellants entered court]

 5                           --- Upon commencing at 2.15 p.m.

 6             JUDGE MERON:  Please be seated.

 7             Good afternoon.  Registrar, would you please call the case.

 8             THE REGISTRAR:  Good afternoon, Your Honours.  Good afternoon to

 9     everyone in the courtroom.  This is case number IT-95-13/1-A, the

10     Prosecutor versus Mile Mrksic and Veselin Sljivancanin.

11             JUDGE MERON:  Thank you.

12             Mr. Mrksic, Mr. Sljivancanin, can you hear me?

13             THE APPELLANT MRKSIC: [Interpretation] Your Honour, we can hear

14     you.

15             JUDGE MERON:  Mr. Sljivancanin.

16             THE APPELLANT SLJIVANCANIN: [Interpretation] Good afternoon,

17     Your Honour.  I can hear.

18             JUDGE MERON:  Thank you.  Appearances for the parties, first for

19     the Defence of Mr. Mrksic.

20             MR. VASIC: [Interpretation] Good afternoon, Your Honour.  Good

21     afternoon to everyone in and around the courtroom.  Mr. Miroslav Vasic,

22     Defence counsel, and Vladimir Domazet will be the Defence for Mr. Mrksic

23     today.

24             JUDGE MERON:  For Mr. Sljivancanin.

25             MR. LUKIC: [Interpretation] Good afternoon, Your Honours.  I am

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 1     Novak Lukic, Defence counsel from Belgrade, and together with

 2     Mr. Stephane Bourgon I will represent the Defence of Mr. Sljivancanin,

 3     and we have Mr. William St. Michel as our assistant here.

 4             JUDGE MERON:  For the Prosecution.

 5             MR. ROGERS:  Paul Rogers for the Office of the Prosecutor,

 6     together with Mr. Marwan Dalal, and our case manager today is

 7     Ms. Alma Imamovic.

 8             JUDGE MERON:  Thank you.

 9             As the registrar announced, the case on our agenda today is

10     Prosecutor against Mile Mrksic and Veselin Sljivancanin.  In accordance

11     with the Scheduling Order issued on 9 April 2009, today the Appeals

12     Chamber will deliver its judgement.

13             The events giving rise to this case took place on

14     20/21 November, 1991, and concern the mistreatment and execution of Croat

15     and other non-Serb persons taken from the Vukovar Hospital by Serb forces

16     on 20 November 1991.  The city of Vukovar had been the object of attack

17     by the Yugoslav People's Army, herein after JNA, from August until

18     November 1991.  During the course of the three-month siege, the city was

19     largely destroyed by JNA shelling and hundreds of people were killed.

20     When the Serb forces occupied the city, hundreds more non-Serbs were

21     killed by Serb forces.  The majority of the remaining non-Serb population

22     of the city was expelled within days of the fall of Vukovar.  In the last

23     days of the siege, several hundred people sought refuge at the

24     Vukovar Hospital, in the hope that it would be evacuated in the presence

25     of international observers.

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 1             The Zagreb Agreement concluded on 18 November 1991, provided for

 2     such an evacuation; however, on the morning of 20 November 1991, JNA

 3     soldiers conducted a triage at the Vukovar Hospital and loaded selected

 4     individuals onto buses.  At minimum, the vast majority of the selected

 5     individuals were prisoners of war.  The prisoners were transported first

 6     to the JNA barracks in Vukovar and then onward to a pig farm at Ovcara.

 7     At Ovcara, the prisoners were unloaded from the buses and held in a

 8     hangar.  As they were unloaded from the buses, almost all of the

 9     prisoners were forced to pass through a gauntlet of Serb soldiers who

10     beat them cruelly with a variety of implements, including wooden sticks,

11     rifle-butts, poles, chains, and crutches, and verbally abused them.  The

12     beatings continued inside the hangar and lasted for hours.  Many were

13     kicked or struck with implements such as iron rods and rifle-butts.  That

14     evening, the JNA troops who had been guarding the prisoners were

15     withdrawn, leaving the prisoners to the mercy of members of the

16     Territorial Defence, herein after TOs, and paramilitaries.  The

17     Trial Chamber found that following the withdrawal of the 80th Motorised

18     Brigade, TOs, and paramilitaries murdered almost 200 of these individuals

19     at Ovcara and buried them in a mass grave.  These are identified in the

20     Schedule to the Trial Judgement.

21             During the time relevant to the indictment, Mile Mrksic was a

22     colonel in the JNA and commander of the Guards Motorised Brigade and

23     Operational Group South, herein after OG South.  As commander of OG South

24     he had command of all Serb forces including JNA, TO, and paramilitary

25     forces.  Mr. Mrksic was convicted under Articles 3 and 7(1) of the

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 1     Statute for murder as a violation of the laws or customs of war, for

 2     having aided and abetted the murder of 194 individuals, identified in the

 3     Schedule to the Trial Judgement, at a site located near the hangar at

 4     Ovcara on 20 and 21 November 1991; torture, as a violation of the laws or

 5     customs of war, for having aided and abetted the torture of POWs at the

 6     hangar at Ovcara on 20 November 1991; and cruel treatment as a violation

 7     of the laws or customs of war for having aided and abetted the

 8     maintenance of inhumane conditions of detention at the hangar at Ovcara

 9     on 20 November 1991.  He was acquitted of all crimes charged as crimes

10     against humanity, which included persecutions, extermination, murder,

11     torture, and inhumane acts.  The Trial Chamber sentenced him to a single

12     term of 20 years' imprisonment.

13             During the period relevant to the indictment,

14     Veselin Sljivancanin was a major in the JNA and held the post of head of

15     the security organ of both the Guards Motorised Brigade and the OG South.

16     The Trial Chamber found that Mr. Sljivancanin was appointed by Mr. Mrksic

17     to evacuate the Vukovar Hospital.  It found that his responsibilities

18     included the conduct of the triage, the selection of war crimes suspects

19     removed from the Vukovar Hospital on 20 November 1991, and the latter's

20     transport and security, as well as the evacuation of civilians.  The

21     Trial Chamber convicted him under Articles 3 and 7(1) of the Statute for

22     having aided and abetted the torture of prisoners of war at the hangar at

23     Ovcara on 20 November 1991.  It did not enter a conviction for cruel

24     treatment as a violation of the laws and customs of war as it was

25     impermissibly cumulative with his conviction for torture.  Further, it

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 1     acquitted him of all counts charged as crimes against humanity, as well

 2     as for murder as a violation of the laws or customs of war. The Trial

 3     Chamber sentenced him to a single term of five years' imprisonment.

 4             Following the practice of the International Tribunal, I will not

 5     read out the text of the judgement except for the disposition.  Instead,

 6     I will summarise the issues on appeal and the findings of the Appeals

 7     Chamber.  This summary is not part of the written judgement, which is the

 8     only authoritative account of the Appeals Chamber's rulings and reasons.

 9     Copies of the written judgement will be made available to the parties at

10     the conclusion of this hearing.

11             The Office of the Prosecutor, herein after Prosecution, brought

12     four grounds of appeal against the Trial Judgement and requests the

13     Appeals Chamber to: reverse the acquittals of Veselin Sljivancanin and

14     Mile Mrksic under Article 5 of the Statute on crimes against humanity;

15     overturn the acquittal of Veselin Sljivancanin for murder as a violation

16     of the laws and customs of war; revise and increase Veselin Sljivancanin

17     and Mile Mrksic's sentence in order to properly reflect the gravity of

18     their criminal conduct; and lastly, revise and increase

19     Veselin Sljivancanin and Mile Mrksic's sentences in case the Appeals

20     Chamber enters new convictions under Article 5 of the Statute.

21             Mile Mrksic brought 11 grounds of appeal against the Trial

22     Judgement.  He requests the Appeals Chamber to acquit him of his

23     convictions of Article 3 of the Statute, for having aided and abetted the

24     crimes of murder, torture and cruel treatment.  He further argues that

25     the Trial Chamber erred in sentencing him to 20 years' imprisonment.

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 1             Mr. Sljivancanin brought six grounds of appeal against the Trial

 2     Judgement.  He requests the Appeals Chamber to reverse the Trial

 3     Judgement and find him not guilty of aiding and abetting torture as a

 4     violation of the laws and customs of war under Article 3 of the Statute;

 5     or in the alternative, to order a new trial on this count; or, if the

 6     conviction is upheld, to reduce the sentence of five years' imprisonment

 7     imposed by the Trial Chamber.

 8             The Appeals Chamber heard submissions of the parties regarding

 9     these appeals on 21 and 23 January, 2009.

10             Before addressing Mr. Mrksic and Mr. Sljivancanin's appeals, I

11     will touch upon the Prosecution's first ground of appeal as it raises a

12     legal issue which is relevant to both of them.

13             In its first ground of appeal, the Prosecution argues that the

14     Trial Chamber erred in law by requiring the individual victims of crimes

15     against humanity under Article 5 of the Statute to be civilians, there by

16     excluding persons hors de combat, and as a result, erred in entering

17     convictions for war crimes only.  The Appeals Chamber finds that whereas

18     the civilian status of the victims, the number of civilians, and the

19     proportion of civilians within a civilian population are factors relevant

20     to the determination of whether the chapeau requirements of Article 5 of

21     the Statute that an attack be directed against a civilian population have

22     been fulfilled, there is no requirement, nor is it an element of crimes

23     against humanity that the victims of the underlying crimes be civilians.

24     Therefore, the Appeals Chamber allows the Prosecution's first ground of

25     appeal, insofar as it argues that the Trial Chamber erred in law in

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 1     finding that for the purposes of Article 5 of the Statute, the victims of

 2     crimes against humanity must be civilians, thus excluding persons hors de

 3     combat from being victims of crimes against humanity.

 4             Even though the Trial Chamber erred in law by adding a

 5     requirement that the victims of the underlying crimes under Article 5 of

 6     the Statute be civilians, the Appeals Chamber concurs with the Trial

 7     Chamber - albeit for different reasons - that the jurisdictional

 8     prerequisites of Article 5 of the Statute have not been established.

 9     This is so because, in the present case, the perpetrators of the crimes

10     committed against the prisoners at Ovcara acted in the understanding that

11     their acts were directed against members of the Croatian armed forces.

12     The fact that they acted in such a way precludes that they intended that

13     their acts form part of the widespread and systematic attack against the

14     civilian population of Vukovar, and renders their acts so removed from

15     the attack that no nexus can be established.  The Appeals Chamber finds

16     that in the absence of the required nexus under Article 5 of the Statute

17     the crimes committed cannot be qualified as crimes against humanity.

18     Thus, the Appeals Chamber dismisses the Prosecution's first ground of

19     appeal in all other respects, and upholds the acquittals of

20     Mr. Sljivancanin and Mr. Mrksic under Article 5 of the Statute.

21             Under his first, second, third, fourth, sixth, and tenth grounds

22     of appeal, Mr. Mrksic contends that the Trial Chamber erred by

23     misapplying the standard of proof beyond a reasonable doubt.  However,

24     the Appeals Chamber finds that he fails to show that the Trial Chamber

25     erred in its application of the standard of proof beyond a reasonable

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 1     doubt.

 2             Under his first ground of appeal, Mr. Mrksic argues that the

 3     Trial Chamber wrongly evaluated the role and responsibility of the

 4     80th Motorised Brigade, its command structure, and the relevant evidence.

 5     The Appeals Chamber observes that the significant number of Mr. Mrksic's

 6     submissions under this ground of appeal simply repeat arguments

 7     previously advanced before the Trial Chamber and rejected, without

 8     providing a clear explanation as to how his arguments supports

 9     allegations raised under his first ground of appeal.  Mr. Mrksic fails to

10     discharge the burden incumbent upon him and the Appeals Chamber therefore

11     dismisses his first ground of appeal in its entirety.

12             In his second ground of appeal, Mr. Mrksic argues that the

13     Trial Chamber erred in its analysis of security organs responsibility for

14     separating and transporting the prisoners of war from the Vukovar

15     Hospital.  The Appeals Chamber observes that a significant number of his

16     submissions on appeal merely repeat arguments from his final trial brief,

17     which were rejected by the Trial Chamber, and some of his arguments

18     ignore relevant Trial Chamber findings.  Accordingly, the Appeals Chamber

19     dismisses his second ground of appeal in its entirety.

20             Under his third ground of appeal, Mr. Mrksic submits that the

21     Trial Chamber erred regarding the role and responsibility of officers at

22     the JNA barracks.  He submits that the Trial Chamber erred regarding the

23     timing of the transfer and the Serbian Autonomous Region, herein after

24     SAO government's session.  However, the Appeals Chamber notes that the

25     Trial Chamber carefully considered all the conflicting evidence on this

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 1     issue, and there is no indication that the Trial Chamber completely

 2     disregarded any particular piece of evidence.  Accordingly, the Appeals

 3     Chamber dismisses Mr. Mrksic's third ground of appeal in its entirety.

 4             Under his fourth ground of appeal, Mr. Mrksic alleges errors

 5     regarding the SAO government session.  Again, a number of Mr. Mrksic's

 6     arguments merely repeats submissions made in his final trial brief or

 7     repeat allegations raised under other grounds or subgrounds of appeal

 8     previously dismissed.  Accordingly, the Appeals Chamber dismisses

 9     Mr. Mrksic's fourth ground of appeal in its entirety.

10             Under his fifth ground of appeal, Mr. Mrksic avers that the

11     Trial Chamber erred in fact in concluding that he was informed about the

12     events at Ovcara before the daily briefing in Negoslavci on

13     20 November 1991.  However, the Appeals Chamber finds that Mr. Mrksic

14     fails to demonstrate that an alleged error on the part of the

15     Trial Chamber concerning this finding resulted in a miscarriage of

16     justice.  Accordingly, the Appeals Chamber dismisses Mr. Mrksic's fifth

17     ground of appeal in its entirety.

18             Under his sixth ground of appeal, Mr. Mrksic submits that the

19     Trial Chamber erred in concluding that he ordered the withdrawal of the

20     80th Motorised Brigade from Ovcara.  He challenges the timing of the

21     withdrawal order; the conclusion that he was informed twice about the

22     events at Ovcara; and alleges that the Trial Chamber's assessment of the

23     role of Captain Dragi Vukosavljevic and Colonel Radoje Trifunovic on 20

24     November 1991 was erroneous.  With respect to all of these arguments,

25     Mr. Mrksic does not show that the factual assessments of the

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 1     Trial Chamber, viewed with appropriate deference, were in error.

 2     Accordingly, the Appeals Chamber dismisses Mr. Mrksic's sixth ground of

 3     appeal in its entirety.

 4             Under his seventh ground of appeal, Mr. Mrksic submits that the

 5     Trial Chamber erred in concluding that he did travel to Belgrade either

 6     late on 20 November 1991 or early on 21 November 1991, and contends that

 7     this led to the erroneous finding that he ordered the withdrawal of the

 8     military police from Ovcara.  The Appeals Chamber finds that Mr. Mrksic's

 9     arguments fail to show that the Trial Chamber committed an error of fact

10     which occasioned a miscarriage of justice and dismisses his seventh

11     ground of appeal in its entirety.

12             Under the eighth ground of appeal, Mr. Mrksic avers that the

13     Trial Chamber erred in concluding that the command of OG South under his

14     authority had responsibility for the area of Vukovar between

15     8 October and 24 November 1991.  His arguments essentially repeat

16     submissions previously made at trial and rejected by the Trial Chamber

17     and fail to elaborate on how the error alleged under one of his

18     subgrounds of appeal had any impact on the findings of the Trial Chamber

19     so as to amount to a miscarriage of justice.  Accordingly, the

20     Appeals Chamber dismisses his eighth ground of appeal in its entirety.

21             Under his ninth ground of appeal, Mr. Mrksic submits that as a

22     result of the factual errors alleged under his preceding eight grounds of

23     appeal, the Trial Chamber erred in law in convicting him pursuant to

24     Article 7(1) of the Statute for having aided and abetted the crimes of

25     murder, cruel treatment and torture.  Some of the arguments in support

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 1     have either already been advanced under his previous grounds of appeal

 2     and dismissed, or repeated submissions made at trial without showing that

 3     the Trial Chamber's rejection of them constituted an error which warrants

 4     intervention by the Appeals Chamber.  Consequently, Mr. Mrksic fails to

 5     show that the Trial Chamber committed any error of law invalidating the

 6     Trial Judgement in reaching its findings on his mens rea for aiding and

 7     abetting the murder of the prisoners of war.

 8             Under his ninth ground of appeal, Mr. Mrksic also submits that as

 9     a result of the factual errors alleged under his preceding eight grounds

10     of appeal, the Trial Chamber erred in law in finding, under Article 7(3)

11     of the Statute on command responsibility that he committed murder, cruel

12     treatment and torture.  However, the Appeals Chamber recalls that the

13     Trial Chamber did not enter a conviction against Mr. Mrksic pursuant to

14     Article 7(3) of the Statute.  In light of the foregoing, the

15     Appeals Chamber dismisses Mr. Mrksic's ninth ground of appeal.

16             Under his tenth ground of appeal, Mr. Mrksic raises what he calls

17     disputable facts.  These are facts which he acknowledges were not so

18     important for the Trial Chamber in the course of reaching its decision

19     but which he claims are important for the Defence and the position of the

20     JNA.  The Appeals Chamber reiterates that as long the factual findings

21     supporting Mr. Mrksic's conviction and sentence are sound, as a general

22     rule it will decline to discuss errors related to other factual

23     conclusions which do not have any impact on the Trial Judgement.  In

24     light of this, and since he admits that the errors alleged under this

25     ground of appeal have no impact on the conviction or sentence, the

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 1     Appeals Chamber dismisses Mr. Mrksic's tenth ground of appeal in its

 2     entirety.

 3             Since Mr. Mrksic's eleventh ground of appeal concerns his

 4     sentence, it will be addressed at the end of the summary in the part

 5     relevant to sentencing.

 6             I now turn to Mr. Sljivancanin's appeal.

 7             Under his first ground of appeal, Mr. Sljivancanin argues that

 8     the Trial Chamber erred in finding that he was present in Ovcara on the

 9     afternoon of 20 November 1991.  He contends that the Trial Chamber erred

10     by relying exclusively on the testimony of Witness P009.  The

11     Appeals Chamber finds that the Trial Chamber properly considered the

12     evidence in reaching its finding and dismisses his first ground of appeal

13     in its entirety.

14             Mr. Sljivancanin's second ground of appeal challenges aiding and

15     abetting by omission as a mode of liability.  In support of this

16     challenge, he first argues that aiding and abetting by omission is not a

17     mode of liability included in the International Tribunal's jurisdiction.

18     However, the Appeals Chamber finds that the Trial Chamber properly

19     considered aiding and abetting by omission as a recognised mode of

20     liability under the International Tribunal's jurisdiction.

21             Mr. Sljivancanin also submits that he was not put on notice that

22     the Prosecution intended to rely on this mode of liability.  The

23     Appeals Chamber finds that the indictment plead with sufficient

24     particularity the nature of the charges against him with regard to aiding

25     and abetting by omission, the mistreatment of prisoner of war at Ovcara.

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 1     Further, the Appeals Chamber finds that Mr. Sljivancanin failed to show

 2     that his Defence was materially impaired by the alleged lack of notice.

 3             Turning to the elements of aiding and abetting by omission, the

 4     Appeals Chamber considers that the mens rea and actus reus requirements

 5     for aiding and abetting by omission are the same as for aiding and

 6     abetting by a positive act.  Thus, the omission must be directed to

 7     assist, encourage, or lend moral support to the perpetration of a crime

 8     and have a substantial effect upon the perpetration of the crime which

 9     forms the actus reus.  Further, the aider and abettor must know that his

10     omission assists in the commission of the crime of the principal

11     perpetrator and must be aware of the essential elements of the crime

12     which was ultimately committed by the principal which forms the mens rea.

13     The critical issue to be determined is whether, on the particular facts

14     of a given case, it is established that the failure to discharge a legal

15     duty assisted, encouraged, or lent moral support to the perpetration of

16     the crime, and had a substantial effect on it.  Further, the

17     Appeals Chamber considers that aiding and abetting by omission implicitly

18     requires that the accused had the ability to act, such that there were

19     means available to the accused to fulfil his duty.

20             With regard to the nature of the duty, the Appeals Chamber

21     recalls that it has previously recognised that the breach of a duty to

22     act imposed by the laws and customs of war gives rise to individual

23     criminal responsibility.  Mr. Sljivancanin's duty to protect the

24     prisoners of war was imposed by the laws and customs of war.  I will

25     elaborate more on this point later on when I address the Prosecution's

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 1     second ground of appeal.  Thus the Appeals Chamber considers that his

 2     breach of such duty gives rise to his individual criminal responsibility.

 3     Accordingly, Mr. Sljivancanin's second ground of appeal is dismissed in

 4     its entirety.

 5             In his third ground of appeal, Mr. Sljivancanin argues that the

 6     Trial Chamber erred in finding that Mr. Mrksic put him in charge of the

 7     evacuation of the Vukovar Hospital and thereby entrusted him with a legal

 8     duty to protect the prisoners of war at Ovcara.  The Appeals Chamber

 9     finds that it was reasonably open to the Trial Chamber to conclude, on

10     the basis of the totality of the evidence before it, that

11     Mr. Sljivancanin was under a duty to protect the prisoners of war from

12     the Vukovar Hospital by reason of the responsibility delegated to him by

13     Mr. Mrksic.  Accordingly, Mr. Sljivancanin's third ground of appeal is

14     dismissed in its entirety.

15             In his fourth ground of appeal, Mr. Sljivancanin challenges the

16     Trial Chamber's finding that he must have witnessed the mistreatment of

17     the POWs in Ovcara.  The Appeals Chamber recalls that with respect to

18     Mr. Sljivancanin's first ground of appeal, it has found that he failed to

19     demonstrate that the Trial Chamber committed any error of law or fact

20     with regard to his presence at Ovcara on the afternoon of

21     20 November 1991 and the time-line of events of that afternoon.  Under

22     his fourth ground of appeal, Mr. Sljivancanin does not attempt to further

23     substantiate his arguments under his first ground of appeal.

24     Accordingly, his fourth ground of appeal is dismissed in its entirety.

25             In Mr. Sljivancanin's fifth ground of appeal, he submits that the

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 1     elements of aiding and abetting the torture of the prisoners of war at

 2     Ovcara were not fulfilled.

 3             First, with regard to whether Mr. Sljivancanin's failure to act

 4     had a substantial effect on the commission of the crimes at Ovcara, the

 5     Appeals Chamber finds that the fact that other officers better placed

 6     than him to ensure the protection of the prisoners of war at Ovcara also

 7     failed to act does not itself negate the fact of Mr. Sljivancanin's

 8     failure to intervene to prevent the mistreatment.  As to

 9     Mr. Sljivancanin's contention that he was not responsibile for the

10     security of the prisoners of war held at Ovcara, and that it has not been

11     proven that he could have prevented the mistreatment of prisoners of war,

12     the Appeals Chamber recalls that it has upheld the Trial Chamber's

13     finding that Mr. Mrksic ordered Mr. Sljivancanin to be in charge of the

14     evacuation and authorised him to use as many military police as necessary

15     to escort the prisoners of war and ensure their safe passage.  The

16     Appeals Chamber finds that Mr. Sljivancanin failed to show any error in

17     the Trial Chamber's consideration of whether his contribution had a

18     substantial effect on the mistreatment of the prisoners of war at Ovcara.

19             Second, with regard to Mr. Sljivancanin's argument that the

20     Trial Chamber erred in finding that he must have -- that he must have

21     been aware that his failure to give clear direction to the military

22     police or to reinforce them assisted the commission of the crimes, the

23     Appeals Chamber considers that, in light of the fact that

24     Mr. Sljivancanin saw the mistreatment of the prisoners of war at Ovcara

25     occurring despite the presence of JNA troops, it must have been clear to

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 1     him that the JNA officers and troops present were either unable or

 2     unwilling to prevent the beatings.  Mr. Sljivancanin must have known that

 3     it was his responsibility to protect the POWs and that he had the

 4     authority to take action.  Knowing what he did, the only reasonable

 5     conclusion is that he knew that his failure to take any action to protect

 6     the POWs assisted in the mistreatment of the POWs by the TOs and

 7     paramilitaries.  As a result, it was open to the Trial Chamber to

 8     conclude that Mr. Sljivancanin possessed the requisite mens rea for

 9     aiding and abetting torture.  Accordingly his fifth ground of appeal is

10     dismissed in its entirety.

11             Mr. Sljivancanin's sixth ground of appeal will be addressed at

12     the end of this summary in the part relevant to sentencing.

13             I now turn to the Prosecution's second ground of appeal which is

14     also relevant to Mr. Sljivancanin.

15             In its second ground of appeal, the Prosecution argues that the

16     Trial Chamber erred in fact and in law in failing to find that

17     Mr. Sljivancanin was responsible for aiding and abetting the murder of

18     the 194 people identified in the Schedule to the Trial Judgement as

19     having been killed at Ovcara on the evening of 20 /21 November, 1991.

20             The Prosecution submits that the Trial Chamber erred in failing

21     to find that Mr. Sljivancanin knew at the time of his visit to Ovcara

22     that the TOs and paramilitaries would likely kill the prisoners.  With

23     regard to the mens rea of aiding and abetting the murders, the

24     Trial Chamber found that it was only upon the final withdrawal of the JNA

25     troops from Ovcara on the evening of 20 November 1991 that the killing of

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 1     the prisoners of war became a likely occurrence, and therefore, that it

 2     was possible that Mr. Sljivancanin did not foresee the likelihood of the

 3     murders prior to learning of the withdrawal.  The Appeals Chamber finds

 4     that it was not unreasonable for the Trial Chamber to have concluded that

 5     as long as the presence of the JNA troops continued, they might have

 6     continued to provide a sufficient intervening element to prevent the

 7     mistreatment by TOs and paramilitaries from escalating from physical

 8     abuse to killing, despite their failure to prevent mistreatment

 9     altogether.  Thus, it was not unreasonable for the Trial Chamber to

10     conclude that Mr. Sljivancanin could reasonably have believed in the

11     circumstances that the TOs and paramilitaries would be unlikely to resort

12     to killing.  As a result, the Appeals Chamber finds that Mr. Sljivancanin

13     did not possess the requisite mens rea for aiding and abetting murder, as

14     long as he was under the understanding that the JNA troops remained at

15     Ovcara.

16             The Appeals Chamber notes that the Trial Chamber did not make a

17     finding or draw any inference as to when or whether Mr. Sljivancanin

18     became aware of the order to withdraw the JNA troops on the night of

19     20 November 1991.  However, the only reasonable conclusion that can be

20     drawn is that Mr. Mrksic told Mr. Sljivancanin in the course of their

21     meeting upon Mr. Sljivancanin's return to Negoslavci that night that he

22     had withdrawn the JNA protection from the prisoners of war held at

23     Ovcara.  Given the Trial Chamber's finding that it was Mr. Sljivancanin's

24     knowledge of the presence of the JNA troops that precluded him from

25     concluding that the killing of the prisoners of war was a likely

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 1     occurrence, the only reasonable inference is that upon learning of the

 2     order to withdraw the troops, Mr. Sljivancanin realized that the killing

 3     of the POWs at Ovcara had become a likely occurrence.

 4             Similarly, knowing that the killing of POWs was the likely

 5     outcome of their being left in the custody of the TOs and paramilitaries,

 6     Mr. Sljivancanin must have also realized that given his responsibility

 7     for the prisoners of war, if he failed to take action to ensure the

 8     continued protection of POWs, he would be assisting the TOs and

 9     paramilitaries to carry out the murders.  As a result, the Appeals

10     Chamber finds that upon learning of the order to withdraw the JNA troops

11     from Mr. Mrksic at their meeting of the night of 20 November 1991, the

12     only reasonable inference is that Mr. Sljivancanin was aware that the TOs

13     and paramilitaries would likely kill the POWs and that if he failed to

14     act, his omission would assist in the murder of the prisoners.

15     Accordingly, the Appeals Chamber finds that upon learning of Mr. Mrksic's

16     order to withdraw the JNA troops from Ovcara, Mr. Sljivancanin formed the

17     mens rea for aiding and abetting murder.

18             Under its second ground of appeal, the Prosecution also

19     challenges the Trial Chamber's finding that Mr. Sljivancanin's legal duty

20     towards the prisoners ended upon the withdrawal of the last JNA troops

21     from Ovcara upon Mr. Mrksic's orders.

22             Before elaborating on the correctness of this finding, it is

23     pertinent at this juncture to recall that the Trial Chamber did not make

24     a finding as to whether the armed conflict in the municipality of Vukovar

25     at the material time was of an international or non-international nature.

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 1     However, even in the context of an internal armed conflict, Geneva

 2     Convention III Relative to the Treatment of Prisoners of War applies

 3     where the parties to the conflict have agreed that the convention shall

 4     apply.  In this respect, the Appeals Chamber recalls the European

 5     Community Monitoring Mission's instructions to its monitors on the

 6     implementation of the Zagreb agreement which indicated that the

 7     Geneva Conventions were to be applied to the prisoners of war.  In order

 8     an order issued on 18 November 1991, Lieutenant-General Zivota Panic

 9     directed the JNA units in the Vukovar area, including OG South, were to

10     observe all aspects of Geneva Convention III.  Furthermore,

11     Colonel Nebojsa Pavkovic advised the monitors of instructions from

12     General Raseta to the effect that Croat forces would not be evacuated

13     with the rest of the humanitarian convoy but remain as prisoners of war

14     and that the Geneva Conventions would apply.  The Appeals Chamber

15     considers that this provides sufficient evidence to conclude that the JNA

16     had agreed that the Croat forces were to be considered prisoners of war

17     and that Geneva Convention III was to apply.

18             Turning to Mr. Sljivancanin's responsibility for the welfare and

19     security of the prisoners of war in the context of Geneva Convention III,

20     the Appeals Chamber recalls that the fundamental principle enshrined in

21     Geneva Convention III that prisoners of war must be treated humanely and

22     protected from physical and mental harm, applies from the time they fall

23     into the power of the enemy until their final release and repatriation.

24     It thus entails the obligation of each agent in charge of the protection

25     or with custody of the prisoners of war to ensure that their transfer to

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 1     another agent will not diminish the protection to which the prisoners are

 2     entitled.

 3             Further, although the duty to protect POWs belongs in the first

 4     instance to the detaining power, this is not to the exclusion of

 5     individual responsibility.  The Appeals Chamber thus finds that the

 6     Geneva Convention III invests all abilities of a detaining power into

 7     whose custody the prisoners of war have come with the obligation to

 8     protect them.  It considers that all state agents who find themselves

 9     with custody of POWs owe them a duty of protection regardless of whether

10     the investment of responsibility was made through explicit delegation,

11     such as through legislative enactment or a superior order, or as a result

12     of the state agent finding himself with de facto custody over prisoners

13     of war, such as where a prisoner of war surrenders to that agent.

14             The Appeals Chamber therefore considers that Mr. Sljivancanin was

15     under a duty to protect the prisoners of war held at Ovcara and that this

16     responsibility included the obligation not to allow the transfer of

17     custody of the prisoners of war to anyone without first satisfying

18     himself that they would not be harmed.  Mr. Mrksic's order to withdraw

19     the JNA troops did not relieve him of his position as an officer of the

20     JNA.  As such, Mr. Sljivancanin remained an agent of the detaining power

21     and thus continued to be bound by Geneva Convention III not to transfer

22     the prisoners of war to another agent who would not guarantee their

23     safety.  For the foregoing reasons, the Appeals Chamber finds that the

24     Trial Chamber erred in finding that Mr. Sljivancanin's duty to protect

25     the POWs, pursuant to the laws and customs of war came to an end upon

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 1     Mr. Mrksic's order to withdraw.

 2             In light of these findings the Appeals Chamber turns to consider

 3     whether Mr. Sljivancanin's failure to act upon learning of the order to

 4     withdraw the JNA troops from Ovcara substantially contributed to the

 5     murder of the prisoners of war by the TOs and paramilitaries.  The

 6     Appeals Chamber must be satisfied beyond a reasonable doubt that the

 7     Prosecution has demonstrated that Mr. Sljivancanin substantially

 8     contributed to the killings by his inaction and that a count is taken of

 9     the errors committed by the Trial Chamber all reasonable doubt concerning

10     Mr. Sljivancanin's guilt has been eliminated.  In this regard, the

11     Appeals Chamber recalls that aiding and abetting by omission implicitly

12     requires that the accused had the ability to act but failed to do so.

13             The Trial Chamber found that at the relevant time,

14     Mr. Sljivancanin was exercising the power and authority conferred on him

15     by Mr. Mrksic to conduct the evacuation of the hospital, and as such, he

16     was exercising de jure authority with respect to the relevant JNA

17     military police forces of OG South rather than pursuant to his mandate as

18     security organ.  Accordingly, an order from Mr. Mrksic terminating any

19     specifically delegated duty for the security of the prisoners of war,

20     would also have removed the power and authority that Mr. Sljivancanin had

21     over the military police of the 80th Motorised Brigade.

22             Having said this, the Appeals Chamber considers that even though

23     Mr. Sljivancanin no longer had de jure authority over the military police

24     deployed at Ovcara, he could have informed the military police deployed

25     at Ovcara that Mr. Mrksic's order was in breach of the overriding

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 1     obligation under the laws and customs of war to protect the POWs and thus

 2     constituted an illegal order.  Issuing an order contrary to Mr. Mrksic's

 3     to the military police of the 80th Motorised Brigade was a course of

 4     action that would have required Mr. Sljivancanin to go beyond the scope

 5     of his de jure authority, which had been effectively removed by virtue of

 6     Mr. Mrksic's withdrawal order.  Nonetheless, the illegality of

 7     Mr. Mrksic's order required Mr. Sljivancanin to do so.  The

 8     Appeals Chamber considers that in certain circumstances, an officer may

 9     be required, within the limits of his capacity to act, to go beyond his

10     de jure authority to counteract an illegal order.

11             The Appeals Chamber further considers that Mr. Sljivancanin could

12     have attempted to persuade Mr. Mrksic to abort the withdrawal order.  Had

13     his attempts to persuade Mr. Mrksic not been successful, when

14     Mr. Sljivancanin telephoned Belgrade in order to speak to

15     General Vasiljevic, he could have sought the General's assistance on this

16     matter.

17             The Appeals Chamber considers that had Mr. Sljivancanin been

18     successful in securing the return of the military police to Ovcara, the

19     murder of the prisoners of war would have been substantially less likely.

20     The Appeals Chamber thus finds that Mr. Sljivancanin's failure to act

21     pursuant to his duty under the laws and customs of war substantially

22     contributed to the murder of the prisoners of war.

23             For the foregoing reasons, the Appeals Chamber finds, Judge Pocar

24     and Judge Vaz dissenting, that all the requirements for a conviction for

25     aiding and abetting murder by omission have been met, and is satisfied

Page 343

 1     beyond a reasonable doubt that the Prosecution has shown that, when

 2     account is taken of the errors committed by the Trial Chamber, all

 3     reasonable doubt concerning Mr. Sljivancanin's guilt has been eliminated.

 4             I now turn to the sentencing appeals.

 5             In his eleventh ground of appeal, Mr. Mrksic argues that the

 6     Trial Chamber wrongly considered aggravating and mitigating circumstance

 7     that the laws of the former Yugoslavia on the punishment of those found

 8     convicted of like offences could never refer to abettors, but only to

 9     perpetrators of such crimes and hence that his sentence is "too severe

10     and unjust."

11             The Appeals Chamber rejects Mr. Mrksic's challenges to the

12     Trial Chamber's assessment of the aggravating and mitigating

13     circumstances and also finds that Mr. Mrksic fails to identify any

14     discernible error concerning the Trial Chamber's consideration of the

15     general sentencing practice of the former Yugoslavia.  Therefore,

16     Mr. Mrksic's eleventh ground of appeal is dismissed in its entirety.

17             Under its fourth ground of appeal, the Prosecution argues that

18     the Trial Chamber erred by imposing a "manifestly inadequate" sentence on

19     Mr. Mrksic as insufficient weight was given to Mr. Mrksic's role and

20     responsibility and to the gravity of his crimes; namely, aiding and

21     abetting the torture and cruel treatment of the approximately

22     200 prisoners held at Ovcara, and aiding and abetting the murder of

23     194 of them.  Consequently, it requests that Mr. Mrksic's sentence be

24     increased.

25             With regard to Mr. Mrksic's role and responsibility, the

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 1     Appeals Chamber finds that the Trial Chamber duly considered his position

 2     and the role both in the context of how he contributed to the commission

 3     of the crimes and in the context of assessing whether his conduct as an

 4     officer could be considered as a mitigating circumstance.  The

 5     Prosecution's arguments are dismissed.

 6             With respect to the Prosecution's submissions that the Trial

 7     Chamber gave insufficient weight to the "objective gravity" of the

 8     crimes, the Appeals Chamber emphasises that while consideration of the

 9     gravity of the offence involves, in addition to consideration of the

10     gravity of the conduct of the accused, consideration of the seriousness

11     of the underlying crimes, the gravity of the crime does not refer to a

12     crime's "objective gravity."  With regard to the Prosecution's argument

13     that the Trial Chamber erred by only considering comparable cases

14     involving mass killings and not cases involving torture or cruel

15     treatment, the Appeals Chamber recalls that, in the present case, the

16     Trial Chamber stated that it could not, and I quote "identify a case

17     before the Tribunal that may be said to involve the same offence and

18     substantially similar circumstances as in the present case."

19     Accordingly, it did not engage in a comparison with previous decisions on

20     sentence and rather referred to its obligation to tailor its sentence to

21     fit the individual circumstance of the case.  The Appeals Chamber finds

22     that the Prosecution fails to demonstrate that the Trial Chamber

23     disregarded previous comparable cases.

24             The Appeals Chamber further notes that the Trial Chamber was

25     aware of its obligation under Article 24(2) of the Statute to take into

Page 345

 1     account the gravity of the crime in its sentencing determination.  The

 2     Trial Judgement is replete with detailed findings addressing the gravity

 3     of the underlying crimes involving the mistreatment at Ovcara and the

 4     subsequent execution of at least 194 of the prisoners and their burial in

 5     a mass grave.

 6             In recalling these findings, the Trial Chamber took into account

 7     Mr. Mrksic's conviction for murder, torture, and cruel treatment in

 8     assessing the gravity of the crimes.  The Appeals Chamber emphasises that

 9     the Trial Judgement must be read as a whole.  The Trial Chamber's

10     references to the underlying crimes in the sentencing part and its

11     detailed findings in the body of the Trial Judgement as to the horrific

12     condition in which the prisoners of war had been kept throughout the

13     afternoon, the nature of the mistreatment to which they were subjected,

14     and the way in which 194 of them were murdered, indicate that the gravity

15     of the underlying crimes was properly considered at the sentencing stage.

16     However, the Appeals Chamber is unable to determine how the Trial Chamber

17     weighed the consequences of the torture upon the victims and their

18     families, or whether or not -- and whether or to what extent it

19     considered the particular vulnerability of the prisoners.  Nonetheless,

20     the Appeals Chamber finds that the Trial Chamber's sentence of 20 years'

21     imprisonment is not so unreasonable that it can be inferred that the

22     Trial Chamber must have failed to exercise its discretion properly.

23     Accordingly, the Prosecution fails to show that the Trial Chamber

24     committed any discernible error in the exercise of its discretion by

25     imposing a sentence that does not reflect the gravity of the crimes

Page 346

 1     Mrksic aided and abetted.

 2             In light of the foregoing, the Appeals Chamber dismisses the

 3     Prosecution's fourth ground of appeal in its entirety.

 4             I turn now to the appeals regarding Veselin Sljivancanin's

 5     sentence.

 6             Mr. Sljivancanin submits in his sixth ground of appeal that the

 7     Trial Chamber erred, when assessing his role and responsibility in the

 8     torture of POWs at Ovcara, in finding that the POWs were under his

 9     immediate responsibility; erred by considering his involvement in

10     preventing international representatives from gaining access to the

11     hospital on 20 November 1991 as an aggravating circumstance; erred in

12     failing to consider his good conduct and demeanour as a mitigating

13     circumstance; and did not properly take into account the sentencing

14     practices in the former Yugoslavia.

15             With regard to the Trial Chamber's finding that the POWs were

16     under his immediate responsibility, the Appeals Chamber finds that

17     Mr. Sljivancanin does not demonstrate the Trial Chamber's use of the

18     words "immediate responsibility" is inconsistent with its previous

19     findings regarding his responsibility for the POWs at Ovcara.  His

20     arguments are dismissed.

21             With regard to Mr. Sljivancanin's involvement in preventing

22     international representatives from gaining access to the hospital on

23     20 November 1991, the Appeals Chamber considers that it is not clear

24     whether the Trial Chamber took this factor into account as an aggravating

25     circumstance.  The Appeals Chamber is thus not satisfied that the

Page 347

 1     Trial Chamber committed a discernible error in exercising its discretion.

 2     Accordingly, Mr. Sljivancanin's arguments are dismissed.

 3             With respect to Mr. Sljivancanin's argument that the

 4     Trial Chamber erred in failing to consider his good conduct and demeanour

 5     as a mitigating circumstance, the Appeals Chamber notes that the

 6     Trial Chamber considered evidence of his good character when sentencing

 7     him.  The Appeals Chamber notes that Mr. Sljivancanin did not make any

 8     sentencing submission at trial.  Accordingly, his arguments are

 9     dismissed.

10             The Appeals Chamber also rejects Mr. Sljivancanin's challenges to

11     the Trial Chamber's consideration of the general sentencing practice of

12     the former Yugoslavia.

13             In light of the foregoing, Mr. Sljivancanin's sixth ground of

14     appeal is dismissed in its entirety.

15             The Prosecution submits under its third ground of appeal that the

16     sentence of five years' imprisonment imposed by the Trial Chamber on

17     Mr. Sljivancanin is manifestly inadequate because insufficient weight was

18     given to Mr. Sljivancanin's role and responsibility, and insufficient

19     weight was given to the "objective gravity" of the crimes.  The

20     Prosecution also argues that a five-year sentence has no deterrent value

21     for people who will be similarly situated in the future.  It seeks an

22     increase in Mr. Sljivancanin's sentence to fall into the range of

23     15 to 25 years' imprisonment.

24             With regard to Mr. Sljivancanin's role and responsibility, the

25     Appeals Chamber notes that the Trial Chamber duly considered how

Page 348

 1     Mr. Sljivancanin's role and responsibility contributed to the commission

 2     of the cruel treatment and torture of the prisoners of war.  The

 3     Appeals Chamber further notes that in discussing his role and

 4     responsibility in the sentencing part, the Trial Chamber take care to

 5     reiterate its findings with regard to exact scope of Mr. Sljivancanin's

 6     liability.

 7             With regard to the gravity of the underlying crimes of torture

 8     and cruel treatment of the prisoners, the Appeals Chamber first notes

 9     that the Trial Chamber did not elaborate in the sentencing part of the

10     Trial Judgement on the scale and brutality of the crimes.  However,

11     throughout the Trial Judgement it made a number of findings attesting to

12     the horrific torture and cruel treatment of the prisoners of war.  The

13     Trial Chamber had found that the beatings inflicted serious pain and

14     suffering and that the conditions of detention at Ovcara, including the

15     atmosphere of terror and the constant threat of violence, caused serious

16     mental or physical suffering.  In this respect, the Appeals Chamber notes

17     that the long-term physical, psychological and emotional suffering of the

18     immediate victims is irrelevant to the gravity of the offences.

19             The Appeals Chamber notes that the Trial Chamber indicated its

20     awareness that in assessing its gravity of the offence the overall impact

21     of the crimes upon the victims and their families may be considered.  In

22     particular, the Trial Chamber noted that:  "Apart from a very few persons

23     subjected to cruel treatment or torture, in the present case the victims

24     of the offences were all murdered on the day.  The consequences for them

25     were absolute.  Close family members have been left without their loved

Page 349

 1     ones.  In almost all cases, the anguish and hurt of such tragedy has been

 2     aggravated by uncertainty about the fate which befell these victims."

 3             The Trial Chamber did not make specific reference in the

 4     sentencing part of the Trial Judgement to the particular vulnerability of

 5     the prisoners of war at the time of the commission of the acts and the

 6     impact this had upon them, though there are findings to this effect in

 7     the body of the Trial Judgement.  The Appeals Chamber observes that the

 8     Trial Chamber's consideration of the overall impact upon the victims and

 9     their families as reflected in the paragraph I just quoted, focussed on

10     the fact that most were murdered subsequent to being tortured.  The Trial

11     Chamber did not explicitly consider in the sentencing part of the Trial

12     Judgement the consequence of the torture per se, on the victims or their

13     families.  As Mr. Sljivancanin was convicted only for aiding and abetting

14     the torture of the prisoners of war, it is not entirely clear from the

15     Trial Judgement how the Trial Chamber assessed the overall impact of the

16     torture on the victims and their families in the determination of his

17     sentence.

18             While the Appeals Chamber acknowledges that the Trial Judgement,

19     read as a whole, contains numerous findings to the effect that, in light

20     of the murders of the POWs, close family members had been left without

21     their loved ones, and that in almost all cases the anguish and hurt of

22     such tragedy had been aggravated by uncertainty about the fate which

23     befell these victims, the Appeals Chamber is unable to determine how the

24     Trial Chamber weighed the consequences of the torture upon the victims

25     and their families, or whether or to what extent it considered the

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 1     particular vulnerability of the prisoners, in the determination of

 2     Mr. Sljivancanin's sentence.  These crimes were characterized by extreme

 3     cruelty and brutality towards the POWs, some of whom may have been

 4     previously injured as they had been taken from the Vukovar Hospital;

 5     these persons were protected under international humanitarian law by

 6     reason of their status and particular vulnerability.

 7             In light of the foregoing, the Appeals Chamber finds that there

 8     was a discernible error in the Trial Chamber's exercise of discretion in

 9     imposing the sentence.  Even though the Trial Chamber did not err in its

10     factual findings, considering the findings of the Trial Chamber on the

11     gravity of the crimes, and in particular the consequences of the torture

12     upon the victims and their families, the particular vulnerability of the

13     prisoners, and the very large number of victims, the Appeals Chamber

14     finds that the sentence of five years' imprisonment is so unreasonable

15     that it can be inferred that the Trial Chamber must have failed to

16     exercise its discretion properly.  The Appeals Chamber thus finds that a

17     fire years' imprisonment sentence does not adequately reflect the level

18     of gravity of the crimes committed by Mr. Sljivancanin.

19             Finally, with regard to the Prosecution contention that

20     Mr. Sljivancanin's sentence should convey to those in positions of power

21     that their failure to meet their responsibilities will be properly

22     punished, the Appeals Chamber finds that although the Trial Chamber did

23     not refer specifically to deterrence when considering the factors it took

24     into account in sentencing Mr. Sljivancanin, having referred to

25     deterrence in general terms earlier, as one of the "primary objectives of

Page 351

 1     sentencing," it may be assumed that it was taken into account in

 2     sentencing him.

 3             I will now read out in full the disposition the Appeals Chamber

 4     judgement.

 5             Mr. Mrksic, Mr. Sljivancanin, would you please stand.

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

 7     Article 25 of the Statute and Rules 117 and 118 of the Rules;

 8             Noting the respective written submissions of the parties and the

 9     arguments they presented at the appeals hearings on 21 and 23

10     January 2009;

11             Sitting in open session;

12             Allows the Prosecution's first ground of appeal in part, insofar

13     as it argues that the Trial Chamber erred in law in finding that, for the

14     purposes of Article 5 of the Statute, the individual victims of crimes

15     against humanity must be civilians; dismisses the Prosecution's first

16     ground of appeal in all other respects; affirms the acquittals of

17     Veselin Sljivancanin and Mile Mrksic under Article 5 of the Statute;

18             Allows by majority, the Prosecution's second ground of appeal;

19             Quashes, Judge Vaz dissenting, Veselin Sljivancanin's acquittal

20     under Count 4 of the indictment, and finds, pursuant to Articles 3 and

21     7(1) of the Statute, Judge Pocar and Judge Vaz dissenting,

22     Veselin Sljivancanin guilty under Count 4 of the indictment for aiding

23     and abetting the murder of 194 individuals identified in the Schedule to

24     the Trial Judgement;

25             Allows the Prosecution's third ground of appeal, in part, insofar

Page 352

 1     as the five years' imprisonment sentence does not adequately reflect the

 2     level of gravity of the crimes committed by Veselin Sljivancanin;

 3             Dismisses the Prosecution's appeal in all other respects;

 4             Dismisses Mile Mrksic's appeal in its entirety;

 5             Affirms Mile Mrksic's convictions under Counts 4, 7, and 8 of the

 6     indictment;

 7             Dismisses Veselin Sljivancanin's appeal in its entirety;

 8             Affirms Veselin Sljivancanin's conviction under Count 7 of the

 9     indictment;

10             Affirms Mile Mrksic's sentence of 20 years of imprisonment,

11     subject to credit being given under Rule 101(C) of the Rules for the

12     period already spent in detention;

13             Quashes Veselin Sljivancanin's sentence of five years of

14     imprisonment imposed by the Trial Chamber and imposes by majority,

15     Judge Pocar and Judge Vaz dissenting, a sentence of 17 years, subject to

16     credit being given under Rule 101(C) of the Rules for the period already

17     spent in detention;

18             Orders, in accordance with Rule 103(C) and Rule 107 of the Rules,

19     that Mile Mrksic and Veselin Sljivancanin are to remain in the custody of

20     the International Tribunal pending the finalisation of arrangements for

21     their transfer to the state where their sentences will be served.

22             Judge Fausto Pocar appends a partially dissenting opinion.

23             Judge Andresia Vaz appends a partially dissenting opinion.

24             Mr. Mrksic and Mr. Sljivancanin, you may be seated.

25             I would now request the registrar to please deliver copies of the

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 1     Judgement to the parties.

 2             The Appeals Chamber will now rise.

 3                            --- Whereupon the hearing adjourned at 3.26 p.m.

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